113 Neb. 138 | Neb. | 1925
Defendant, plaintiff in error, was charged in the district court for Adams county with murder in the first degree. Trial was had, verdict of murder in the second degree found, and sentence of 12 years in the penitentiary imposed. To reverse this judgment defendant prosecutes error.
Defendant interposed a motion to quash the information, for the reason, in substance, that it does not set forth the location, nature and extent of the wounds on the body of deceased; that the words in the information, “as a result thereof she died,” and “defendant thus committed murder in the first degree,” are not statements of fact, but . mere conclusions. This motion also states: “That the present Constitution of the State of Nebraska went into effect on January 1, 1921, and there is no common-law crime of murder in the state of Nebraska, and no statutory enactment or law has been passed by the legislature of' said state defining murder.” The motion was overruled, and a plea in abatement was then filed, containing the same grounds, which was also overruled. At the close of the evidence defendant filed a motion requesting the court to instruct the jury to return a verdict of not guilty of murder in the first degree. This was followed by a similar motion regarding murder in the second degree, and one as to manslaughter. Each in its order was overruled. After verdict, motion for a new trial was had and overruled.
As to overruling the motion to quash the information, and the plea in abatement, it is sufficient to say that this court in Nichols v. State, 109 Neb. 335, considered the' statutes and our previous decisions with a view to har
As to the other contention, it is sufficient to state that section 1, art. XVII, of the present Constitution, provides, among other things: “All laws then (January 1, 1921) in force, not inconsistent with the Constitution as amended by such proposals as may, be adopted at such election, shall continue in force until amended or repealed.” Hence, it is held that both the motion and plea are without merit, and the overruling thereof was not error.
Defendant contends that the court erred in giving certain instructions on its own motion, and in refusing to give certain ones requested by him. We first notice instruction No. 18% given, which is as follows:
“If a new and independent cause of death intervenes and of itself takes the life of one who has been wounded, then it will be considered the cause of death, and the person inflicting the first wound cpuld not be held accountable for murder however subject he might be to a prosecution for felonious assault, and therefore if there is any reasonable doubt as to whether the death of Laura B. Phegley was,caused solely by the operation performed upon her, then the defendant would not be accountable for such death, unless such operation was deemed by the physician attending her necessary and proper in treating her for injuries claimed to have been made by the defendant.”
Defendant criticises this instruction because “there is no evidence that an operation was deemed necessary by the physician attending her, and the court assumes that the injuries were 'made by defendant, or that it would be sufficient if they were claimed to have been made by defendant.” The following testimony of Dr. Uridil, who attended Mrs. Phegley after the shooting, shows the lack of foundation for this criticism. “Q. Just what was the
Instruction No. 22 reads as follows: “Under the laws of this state, one who threatens another in a menacing manner commits an unlawful act, and if you are convinced by the evidence beyond a reasonable doubt that the defendant at the time and place stated in the information was threatening said Laura B. Phegley, and while in the commission of such unlawful act and by reason thereof said revolver was discharged, accidentally or otherwise, whereby said Laura B. Phegley was shot and killed, then the defendant would be guilty of manslaughter.”
Defendant contends that there is no evidence showing that he threatened Mrs. Phegley at the time and place stated in the information, and this instruction led the jury to believe that there was. This contention does not reflect
Instruction No. 23, on the presumption of defendant’s innocence and necessity for proof of guilt beyond a reasonable doubt, and No. 24, defining reasonable doubt, are complained of. While these instructions are not couched in the same language, they come within the rule approved in Goemann v. State, 100 Neb. 772. The giving thereof was not error.
Instruction No. 13 charged the jury as follows: “You are instructed that the intent with which an act is done is a mental process and as such generally remains hidden within the mind where it is conceived, and it is rarely, if ever, susceptible of proof by direct evidence, but may be inferred or gathered from outward manifestations, by the words or
And instruction No. 14 charged the jury that “Malice is an essential element of the crime of murder in the first degree; also of murder in the second degree; and before you can find the defendant guilty of either of these offenses, you must be convinced beyond a reasonable doubt from all the facts and circumstances in evidence whether or not the defendant at the time he committed the acts complained of, if you find from the evidence beyond a reasonable doubt that he did commit them, did so with malice on his part.”'
Defendant contends that the use of the words “whether or not” in these two instructions was prejudicial to him, im that such use placed a burden on him to prove that he did not have intent and malice, and robbed him of the presumption of innocence. While the words were not apt in' the connection used, and while we do not approve of their use, yet, taking the court’s charge as a whole, we cannot say that, by their inclusion, prejudicial error was committed. “The true meaning and effect of instructions are not to be determined by the selection of detached parts thereof, but by considering all that is said on each particular subject or branch of the case.” St. Louis v. State, 8 Neb. 405; Murphy v. State, 15 Neb. 383; Debney v. State, 45 Neb. 856; Junod v. State, 73 Neb. 208; 14 R. C. L. 817, sec. 76. Then we are convinced that, from the use of these words, “No substantial miscarriage of justice has actually occurred.” Comp. St. 1922, sec. 10186.
A number of witnesses were sworn and examined, and numerous letters showing a correspondence between defendant and Mrs. Phegley, covering several years prior to .the tragedy, some going back to the time before she obtained a divorce, were introduced in support of the motion
Defendant contends, also that the evidence is insufficient to sustain the verdict. After a careful examination of the entire record, we are convinced that this contention is not well taken, and that the verdict rendered is amply supported thereby. The record shows that the jury’s considerations were clothed with that candor and impartiality which excludes every suspicion of passion, bias, or prejudice, and that the court tempered its judgment with mercy. A further detailed statement of the contents of this voluminous record would serve no useful purpose. The jury
We have carefully considered every alleged error presented, whether such, error has been expressly mentioned in this opinion or not, owing to the importance of the case, and find that reversible error has not been committed. Therefore, the judgment of the district court is
Affirmed. '
Note—See Homicide, 30 C. J. secs. 275, 531, 560; 29 C. J. secs. 54, 56; Criminal Law, 16 C. J. secs. 2493, 2708; 17 C. J. see. 3589; Constitutional Law, 12 C. J. sec. 105.