*1 359 of both corpo- sole and Lundt owners Strong were one corporation made rations, were payments Strong the other. was filed cross-petition not herein and did Lundt deny personal liability It is their position its cross-petition. Guardian in join in a representative for the signed corporation they to indicate itself seem would The contract capacity. on the plaintiff’s of our holding but in otherwise, view Lundt, Strong action the position issue. or meet to discuss court dismissing of the trial affirm judgment We cross-petition. and the petition both
Affirmed. Wayne appellee, v. Judith Nebraska, State appellant. Goodseal, N. W. 2d 258 January 29, 1971. 37605. Filed No.
Paul E. Watts and N. Michael for Schirber, appellant. Clarence A. H. Meyer, General, Attorney and Harold Mosher, for appellee.
Heard before C. J., White, Carter, Spencer, Boslaugh, JJ. Smith, McCown, Newton, Carter, J. defendant, Judith Wayne Goodseal, was charged Douglas County
in the district court for with murder in degree killing Edgar for second of Dick Williams July guilty a 1969. The returned verdict of imposed years and the trial court a sentence 10 to 15 imprisonment Reformatory at in the hard labor Nebraska appealed. for Women. The defendant has July body On 8, 1969, the of Williams was found on edge the street of the sidewalk in front of vacant building at 5208 28th South Street Omaha. It was later determined had that he been shot five six times with .32 caliber That Williams was the bullets. victim apparent. of a homicide seemed The defendant admitted shooting the deceased and asserted done in that was self-defense. employed
The deceased and Lee Dunbar at were closing service station in Omaha. After the station in evening July suggested they 7, 1969, deceased go They pur- out bars, on the went to several town. finally beer, chased drank some drove the previously *3 at Eldorado Club 1 a.m. Deceased had about inquired they might a taxi to driver as where find They parked some women. Dunbar’s car near the El- dorado where deceased Club accosted defendant driving Larry to who was a car W. Pullian leased and negotiation some her intimate asso- after offered for $20 give purported to Deceased defendant two ciation. $10 bills she soon discovered to be two bills and which $1 get to She told him to out of returned them him. proceeded according testimony, to her he to and, car upon her. desires force his years age, 24 was married, was and defendant
separated had husband. She her small her two from living Larry custody. had her She been with children in single year. man, for a ad- a about She Pullian, W. prostitution engaged in had admitted that mitted she negotiated deceased for such she with that that had further he had .32 caliber Pullian testified act with an him. security for a loan. He stated pistol had taken as he that 362 placed pistol
that he had on the floor of his car knowledge under the driver’s but no as seat, had to whether not was loaded. Defendant that or testified gun she did not know there in the im- car until shooting. mediately before Dunbar testified after defend- entered deceased ant’s defendant and deceased drove around the block car, parked in his Defendant Dunbar followed car. her parked car and his car feet be- Dunbar about to 10 delay approached hind it. by some he the car driven After inquires during made some course gun. him he of which deceased asked signal if had On his deceased, from the he in the affirmative answered although gun. no later, he had Some time Dunbar heard pops exploding or to five six somewhat similar fire- away attempted He saw defendant drive crackers. to He a man but was unable saw back seat follow. anonymous to the car. made call to the He an follow police that there had been and informed them a shoot- police ing gave He the color and license the area. The call number of the car. by was verified answered shooting police, of a dis- but evidence not body found on was later the sidewalk covered until Street. in front of South 28th that deceased said he did not have Defendant testified clothing remove her he tried force her to She said $20. testify making did not she resisted. an She which open any attempt car door or to leave outcry legs finally spun her around with her to- the car. He threatening to strike her he and was which him ward clothing. partially own She He removed his did do. and fearful of deceased because she was afraid said following gun. them had a As he man she knew said left she her hand seat, her around turned *4 gun. got dropped in contact with She and came down pointed at gun deceased, it hand, and her left the pistol the automatic bullets in squeezed all the it until against slumped door back the of Deceased fired. were the car. She drove the car back in front of the Eldorado honking Club, the horn to attract the attention of Pul- As lian. she came in front the Club, Eldorado Pullian seeing came out and, the in the the deceased car and signaled pull blood on her to defendant, over the curb. stopped. on, She went turned the corner, fol- and He opened lowed and when he reached the car he the front right-hand body door on the side the on and fell out edge of the sidewalk later where was found police. got He in the back then seat he because, as tes- tified, the front seat was covered with blood. away
Defendant Pullian and drove and went home reporting anyone. without the incident to On arrival at put gun away produced home, their Pullian it in up- court at the He trial. floor washed the mats and holstering to remove blood stains. floor mats upholstering damp were still of vine- odor gar was noticeable when the car searched that after- police. noon point shooting
We out admits the de- pistol ceased a .32 with caliber automatic which she found squeezed the seat under of the car. She claims that she trigger gun until all its shells were fired into body of the deceased. She contends that she did the shooting while in fear of the deceased and Dunbar who admittedly had followed Pullian car and had told presence gun. the deceased defendant’s he had a The evidence clear that defendant and Pullian had body left deceased the sidewalk in of a front building They vacant at 5208 South 28th Street. left immediately report killing the scene and did not anyone. arriving On gun the deceased home, put away upholstering and the floor mats washed thereby remove the blood stains remove evidence killing. evidence of the finding There is that would sustain a self-defense. On the other hand, there is evi- attempted participa- that defendant to conceal her dence killing, guilt. an indication in the tion It was- for *5 jury circum- to determine under all facts purposely or and malici- stances whether not defendant premedita- ously killed Williams without deliberation as or him in self-defense tion or whether she killed law of The that defense is defined this state. jury against these issues the defendant resolved thereby beyond that defend- found a reasonable doubt in also ant did not kill self-defense and found Williams beyond that the evidence a shows reasonable doubt purposely the ly kill defendant did Williams and malicious- premeditation. but without deliberation and weight The defendant contends the rule as to to be given assign- supports evidence circumstantial ment error that the evidence was insufficient to sus- jury properly tain the conviction. The instructed on No. 15 the circumstantial evidence rule instruction giving assigned its as The con- is not error. light in the sidered the circumstantial evidence of this concluded that instruction and the facts and circum- stances tend to connect the accused with the crime charged a conclusive nature to ex- and were such as certainty every hypothesis ex- to a moral rational clude guilt. guilty part cept a verdict of After that of appeal evidence and on therefrom for circumstantial may insufficiency the verdict not be evidence, insufficiency of law for the evi- a matter of set aside as theory sustains some rational if the evidence dence 753; guilt. 425, 183 Neb. 160 N. W. 2d Reeder, State v. 159 N. 2d 257, 549; Neb. W. Williams, 183 State v. State 2d The 134 N. W. 265. evidence is Neb. Ohler, v. jury. finding of the to sustain sufficient assigns trial error the court’s refusal to as Defendant applicable requested to the give instruction law her requested instruction is: “Defend- self-defense. self-defense. acted in Self-de- she contends ant by any the use of force means such as is defined fense necessary appeared repel the time as at an attack necessary, although may she have been to be
365; danger, as mistaken to the extent of the actual if rea- person sonable would also have been so mistaken. justified acting upon they defendant was as facts appeared judged by to him is not to be the facts as they actually were. person
“When a is threatened attacked in such danger manner causes him to he believe receiving bodily injury, may he use self-defense de- *6 fend himself. prove
“It is for conviction that the state beyond a reasonable doubt that the defendant was not acting in self-defense, and there is no burden on the prove acting defendant to that she in self-defense.” foregoing requested given The instruction was ver- by except batim the trial court 9, as instruction No. that paragraph the court inserted a between the and second paragraphs third of the tendered in- instruction. The paragraph person serted stated: the “However, when permitted threatened or attacked uses more force than by guilty the above of self-defense, definition she is of criminally responsible Unlawful conduct and there- is for.” is It the contention of the it defendant that was give error for the trial court to an instruction which requires degree jury weigh type the of force means used. upon
The defendant relies the defense of self-defense by Supp., 1969, 29-114, defined section S. referred as R. herein The re- as Nebraska Self-Defense Act. quested by tendered the defendant based instruction is upon the Self-Defense Act Nebraska which became ef- solely upon an fective June 1969. The State relies apparent interpretation constitutionality readily of It that the act. by is not raised either the of act or defendant. State part provides: person pertinent in of the act “No jeopardy legal any placed kind shall be
this state in (cid:127) any necessary,, protecting, by means for whatsoever himself, personal property, family, or or or his his real coming imminent when the aid another who is danger aggravated of or the assault, victim of armed robbery, holdup, rape, any or other heinous murder, § Supp., argues crime.” R. S. 29-114, 1969. State concept language preserves statute that of the only defending force use reasonable one’s person property. On other hand, argues provides person may that the act that use aggressor repelling an that the unlimited force in may only common law reasonable rule one use abrogated by force been It is has act. shown Legislature by the amendments were twice offered change “any necessary” defeated to means words necessary.” “any clearly the means It reasonable Legislature intention of to eliminate the word “rea- sonable” from the common and it be law rule would legislation an court such circum- act for this under place pronounce- judicial the act stances to back in hand, ment. On the other do not subscribe to de- we “by necessary” any that the means fendant’s view words opening for the of the door use of extreme and were an aggressor every protect case to brutal force an infringements personal against property minor *7 unnecessary rights. Necessary force does mean “any necessary” “any Nor means mean rea- force. does necessary” legislative history under the sonable means here shown.
Killing grounded upon necessity. in self-defense is right extremity only practic- in where no other exists apparent the harm is to means to threatened able avoid resorting appar- person necessity If there is no real or the to it. killing, the fails. In order the defense for ent or self-defense as an excuse to to assert entitled be killing, justification the must have defendant for the danger great bodily death or harm of in imminent been In to act. order of the the commission time of at the killing self-defense, in the justify accused or excuse a only the belief that his life entertained was have must not danger danger in suffering great or that he was in of bod- ily harm, the must reasonable and but belief have been good §§ in faith. 40 Am. Jur. 2d, Homicide, to pp. Ordinarily justified taking 439 to 447. in woman is protecting chastity human in life her where has been she placed great bodily fear in for her life or Here harm. admittedly engaged prostitution the defendant was in negotiated engage and had the deceased to in an with prostitution act of him for sum It with the $20. jury for the to determine or not whether she killed in suffering great bodily fear of or death harm, or the killing by other or hand, whether not the was motivated anger, punishment, vengeance. or The character of engaging prostitu- the defendant the fact of her deprive right tion did not they her of the but self-defense, by jury, were circumstances be considered along by all with other facts and circumstances shown determining necessity the evidence in for extent of the force and not court used. this charged duty deciding with the these issues of fact.
Common law crimes are to the of this unknown law punishment definition state. The be of crimes and for assessed their violation are fixed statute. If Supp., 29-114, 1969,means, R. any person S'. as section it contends, that who finds his judgment protect person property own his from great matter no or trivial invasion another, how rights may force be, extent, his to use to the fullest even punishment aggressor beyond reason, all of the .is placed person claiming self-defense and not with fixing Without the amount of force that with state. resorting justifiable may properly be self- exercised Legis- which is criminal, over above defense, fixing punishment delegated to the lature has person asserting self-defense which cannot do. The our are under we live in social order criminal which laws Legislature through prescribed and the the state *8 368 prescribed by
penalties for their are violation likewise legislative Any attempt delegate either to enactment. powers private persons the of such to excesses with punishment placed naturally when crime are follow powers state, is the elsewhere than the violative of with placed exclusively Legislature our state with Constitution. argument 29-114, has advanced that section been interpreted, properly Supp., 1969,
R. S. has not when up changed long preexisting rule which has been accept in this state and We cannot held elsewhere. argument reasons, first, basis of this for two because put unless here in issue intended the amendment was change existing no to have been law there would enacting Supp., 1969, 29-114, reason for R. S. section rejected second, offered amendments were twice Legislature properly self- the defense of limit Legislature, which we are defense. The intent of the required con determine and is follow, clear and stitutionally acceptable.
We cannot in effect rewrite the statute meet consti- requirements. tutional On the other constitu- hand, the ordinarily tionality pre- act is not which raised question. a But cludes us from of that consideration invalidity plain, act is such deter- where the dispo- mination is to reasonable and sensible presented, required by sition the issues we are neces- sity plain premise error in to notice the which Consequently tried. hold section case was we Supp., 29-114, 1969, S. unconstitutional void. R. prejudicial no No. contains Instruction error rights fact, was defendant, the instruction more to the than she to. favorable was entitled requested Defendant’s instruction herein discussed given by inclusion in effect instruction and it No. properly denied court. evidence is trial the verdict of the to sustain sufficient
369; *9 ought judgment to and is affirmed. be of court the trial Affirmed. dissenting. JJ., Spencer Boslaugh, majority opinion a fundamental The violates herein the. principle Neither of construction. constitutional constitu- an issue as State nor the raise to defendant tionality R. S. 29-114, Act, section of the Self-Defense majority opinion Supp., the stat- 1969. Yet the declares arguments of briefs ute without the benefit invalid constitutionality. upon the issue of following 767, Mattson, 175 Neb. The from v. Stanton abrupt this 844, N. indicates the extent of W. 2d departure precedent: “All acts from well-defined Legislature presumed to constitutional. are be Legislature declare an act of uncon- courts not will except facts before stitutional as a last resort on the questions the court. of constitu- Courts will decide unless, by litigant they tionality raised whose have been adversely power A no interests are court has affected. upon constitutionality summarily pass act of an to Legislature.” any question unnecessary It consti to reach is tutionality Supp., 29-114, in this S. section R. relating to which self-defense, case. The instruction given case, self-defense was this that advised by any means “the use such force repel appeared at the defendant an attack as time necessary.” (Emphasis supplied.) The instruction be only limitation conformed the statute that placed upon might force be used that that “necessary.” be given also the instruc-
The instruction as conformed to except requested .that the trial tion paragraph, taken from NJI 14.33, court included stat- ing person per- than who uses more force that a is contained in instruction the definition mitted criminally responsible therefor. defendant contends part of the instruction was erroneous. that this The Self-Defense Act does not authorize the use unlimited nor force does it who provide persons use more force than necessary should from be immune prosecution. The defendant’s criticism of the instruction given without merit. County Neeman, Irene appellee, al., v. Otoe et Impleaded
appellees, Company, with Aetna Insurance appellant. County Maurice V. Karspeck, appellee, al., v. et Otoe Impleaded
appellees, Company, with Aetna Insurance appellant. *10 County Ruth M. appellee, al., et Williams, v. Otoe Impleaded
appellees, Company, with Aetna Insurance appellant. County Loretta H. Bassinger, appellee, al., v. et Otoe Impleaded
appellees, Company, with Aetna Insurance appellant. 183 N. 2d 269 W. January 29, 37631, 37632,
Filed 1971. Nos. 37634.