76 Neb. 765 | Neb. | 1906
Samuel Parker was tried in the district court for Thurs-ton county on an information charging him with murder in the first degree for the killing of one Andrew Johnson. He was found guilty of the crime of manslaughter, and sentenced to the state penitentiary for a term of five years. Prom that judgment and sentence he prosecutes error, and will be hereafter called the accused.
His first contention is that the trial court erred in overruling his motion to quash the jury panel. The grounds of such motion were: First, that a large number of the citizens, taxpayers and residents of Thurston county are Indians, and were objected to and excluded from the jury list from which the panel was drawn for that reason alone; that, he being an Indian, such action amounted to a denial of his rights under the laws and the constitution of this state and of the United States. Second, that one'of the officers who participated in selecting the jury was a nonresident of Thurston county, and disqualified from acting in that capacity. It appears that his motion was supported by affidavit evidence, and an examination of the record discloses that such affidavits are not embraced in or made a part of the bill of exceptions, and whatever showing there was in support of the motion is contained in the transcript. The evidence not having been preserved in the manner provided .by law, and according to our well-established rules of practice, it cannot be considered by this court, and therefore we are. unable to determine this question. Wright v. State, 45 Neb. 44.
It is further claimed that the court erred in instructing the jury, on his own motion, as follows: “9. You are instructed that a party charged in the unlawful killing of a human being cannot avail himself of the claim of necessary self-defense, or defense of family, if the necessity for such defense was brought on by his own deliberate, wrongful act. Therefore, if the jury believe from the evidence that the defendant sought, brought on, or voluntarily entered into a difficulty with the deceased, Andrew Johnson, for the purpose of wreaking vengeance upon him, or to accomplish some unlawful purpose, or if the jury should find and believe from the evidence, beyond a reasonable doubt, that he killed the deceased at a time when he had, because of the acts of the deceased or those with the deceased, no reasonable apprehension of immediate and impending injury to himself or family, and did so to accomplish some unlawful purpose, or did it from a spirit of retaliation and revenge, then the defendant cannot avail himself of the law of self-defense.” The jury were further told in substance, by instruction No., 10: "If from all of the evidence they should find, beyond a reasonable doubt, that the defendant had no reason to believe that the deceased, Andrew Johnson, intended to take the life of his father or inflict upon him great bodily harm, and that the defendant struck the fatal blow in revenge, or in a reckless spirit, the defendant was not entitled to claim exemption from punishment on the ground of self-defense, or defense of his father.”
Many of the witnesses in this case were Indians, and their evidence was delivered through an interpreter. Some of it is hardly intelligible; but it fairly establishes the
“It is a well-¡settled rule that the instructions must be based on the evidence, and where an instruction has been given without any testimony to support it, and prejudice •results thereby, it is reversible error.”
The record contains many other assignments of error, but as the judgment must be reversed for those which we have heretofore discussed, they will not be considered, and it may be presumed that upon a retrial of the case they will be avoided by the trial court.
For the foregoing reasons the judgment of the district court is reversed and the cause is remanded for a new trial.
REVERSED.