62 Neb. 166 | Neb. | 1901
The defendant, plaintiff in error, was informed against., tried, and by a jury found guilty of murder in the first degree, the penalty being fixed at life imprisonment. Sentence having been duly pronounced on the verdict, the cause is by proceeding in error brought to this court for review. The errors assigned and argued as grounds for a reversal of the judgment of the trial court may, for convenience, he grouped and considered in the following order: 1. Errors in the admission and rejection of evidence. 2. Errors in the instructions to the jury given and refused. 3, The evidence does not sustain the verdict. 4. Misconduct of the jury during their deliberations in arriving at a verdict.
As to the first of the grounds mentioned, complaint is made because the court, during the examination in chief of the defendant, who was a witness in his own behalf, sustained an objection interposed by the state to a question by which he was asked the reason why he struck the deceased at the time of the homicide. As no offer was made as to what the witness would, testify in answer to the question, we are unable to say there is prejudicial error in the ruling complained of. The rule is, and it is applicable alike to criminal and civil trials, that when to a question in direct examination objection is interposed by the adverse party and sustained, in order to present the ruling to this court for review, there must be an offer of proof of the facts sought to be put in evidence by the question to which the answer was excluded. Ford v. State, 46 Nebr., 390, 394; Mathews v. State, 19 Nebr., 330, 338; Denise v. City of Omaha, 49 Nebr., 750; Murry v. Hennessey, 48 Nebr., 608, 613; Smith v. Hitchcock, 38 Nebr., 104, 110; German Ins. Co. v. Hyman, 34 Nebr., 704, 709.
Complaint is also made because, over the objection of the defendant, the trial court admitted in evidence as exhibits the skull of the deceased and a photograph thereof. An examination of the records discloses that these exhibits
With scarcely an exception, all the instructions given the jury at the request of the state are excepted to, and the giving of each is assigned as sufficient reason for the reversal of the judgment. All instructions were given either at the request of the prosecution or the defense, and we think, upon the whole, covered the issues raised in the case in a very satisfactory manner and fairly submitted the law applicable to the evidence, for the guidance of the jury in their deliberations.
Instructions 1 and 2, requested by the state and given, are vigorously assailed as an incorrect expression of the law defining murder in the first degree. They are as follows:
“1. To constitute murder in the first degree there must have been an unlawful killing done, purposely, and with deliberate and premeditated malice. If a person has actually formed the purpose maliciously to kill, and has deliberated and premeditated upon it before he performs the act, and then performs it, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference between murder in the first degree and murder in the second degree; an un
“2. The jury are instructed that while the law requires in order to constitute murder of the first degree, that the killing shall be willful, deliberate and premeditated, still, it does not require that the willful intent, premeditation or deliberation, shall exist for any length of time before the crime is committed; it is sufficient if there was a design and determination to kill distinctly formed in the mind at any moment before or at the time the blow is struck; and in this case, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant feloniously struck and killed the deceased, as charged in the information, and that before or at the time the blow was struck the defendant had formed in his mind a willful, deliberate and premeditated design or purpose to take the life of the deceased, and that the blow was struck in furtherance of that design or purpose and without any justifiable cause or legal excuse therefor, as explained in these instructions, the jury should find the defendant guilty of murder in the first degree.”
It is argued that the instructions fail to distinguish between murder in the first and second degree and eliminate the elements of premeditation and deliberation. We are unable to so conclude. The instructions are substantially the same as those given in Carleton v. State, 43 Nebr., 373, which were approved in an opinion of the court by Irvine, 0. In the first it is said, it is true, that “It is not time that constitutes the distinction between murder in the first and second degree.” It is earnestly insisted that time is required for premeditation and deliberation. While this is true, the time required may be of the shortest possible duration. The time may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed, and this is the substance of the
In 1 Wharton, Criminal Law [10th ed.], section 380, it
During the deliberations of the jury they returned into court and inquired as to “What constitutes a premeditated act and what length of time it would require a person to premeditate committing a deadly assault upon another person, and whether it is possible for a person to, in an instant either pick up a club and injure a person or use a
In the third instruction the jury were told that if they found, beyond a reasonable doubt, from the evidence, all the elements constituting murder in the first degree, to render verdict óf guilty accordingly. Complaint is made because nothing is said in the instruction of the lesser degree, or justifiable homicide on the ground of self-defense. But these subjects were fully covered by other instructions, and it was proper to direct a verdict of guilty of murder in the first degree, if the facts, when found, warranted such a verdict.
An instruction is complained of in which the jury Avere told “You are not at liberty to disbelieve as jurors, if from the evidence you believe as men; your oath imposes on you no obligation to doubt Avhere no doubt would exist if no oath had been administered.”
Instruction No. 10 was of general application, and stated the law as to the credibility of witnesses. Exception is taken on the theory that the defendant being the only interested witness in the result of the case, the instruction must be taken as directly referring to and designating
Complaint is also made because in an instruction defining a reasonable doubt it is said: “If, after a careful and impartial consideration of all the evidence, the jury have an abiding conviction of the guilt of the accused and are fully satisfied of the truth of the charge, then the jury are satisfied beyond a reasonable doubt.” It is insisted that the use of the word “impartial” renders the instruction erroneous. The objection is hypercritical. The use of the word in the connection in which it is used conveys the idea that the jury are to act impartially with no preconceived opinion or desire to find the question of fact submitted to them in favor of or against the accused. That they are to act disinterestedly, and candidly, fairly and dispassionately investigate and consider all the evidence before them, giving to each part such weight as it is fairly entitled to, and render such a verdict as the conclusions thus reached will justify.
The other exceptions taken to the instructions given at the request of the prosecution have been considered, are not well taken and will not be further noticed.
Most, if not all the instructions thus given have heretofore been before the court for consideration and have been approved as a correct statement of the law applicable to trials where the charge, as in the case at bar, is the unlawful killing of another in such a manner as to constitute murder in the first degree..
Counsel for the defendant requested twenty-three instructions to the jury, all of which were given except six.
The other instructions requested by defendant and refused are either incorrect expressions of law or the substance of the instruction refused had been covered and included in one already giAren, and no error Avas committed in the refusal to give them.
The eAndenee, it is contended, is insufficient to support a verdict of murder in the first degree. The homicide occurred at a railroad grading camp Avhere deceased, defendant, and several others Avere engaged in the work of grading. On the evening preceding the tragedy the defendant and some others visited a neighboring village and procured intoxicating liquor, which was brought back to the camp late at night. On the next morning, Sunday, different ones were engaged in card playing, out of which grew quarreling that finally broke up the game. The de
We are also asked to reverse the judgment on the ground of alleged misconduct of the jury. The error claimed in this regard is based on the statements of one of the jurors claimed to have been made after the trial of the case, to the effect that during the deliberations of the jury it was agreed that a vote should be taken as to the different degrees of homicide of which the defendant might be found guilty, and the degree receiving the highest number of votes should be the one the jury would -agree to in the verdict. This fact was sought to be established by the testimony of other witnesses, who testified to what one of
We find no prejudicial.error in the record, and the judgment of the district court is therefore
Affirmed.
Willis v. State, 43 Nebr., 102; Barney v. State, 49 Nebr., 515.