STATE OF NEBRASKA, APPELLEE, v. MARK SCHROEDER, APPELLANT.
No. 41356
Supreme Court of Nebraska
January 25, 1978
261 N. W. 2d 759
As in Watson, the testimony here referred to the defendant as a “man” and to the defendant‘s drinking of beer. It is commonly known that persons under 18 years of age frequently purchase and drink beer. The majоrity opinion finds additional evidence, not present in Watson, which it feels reflects on age. The mention of defendant‘s belonging to the Ku Klux Klan, and a reference to an age requirement of 18 for membership in that organization, are, like the rest of the evidence, tenuous. The cumulative effect of such tenuous evidence does not render the evidence sufficient when measured by the standard “beyond a reasonable doubt.” Nor was the defect in the State‘s case cured by the giving of proper jury instructions. An instruction to the jury is not evidence and cannot be a factor to be considered in determining sufficiency of the evidence.
In light of the State‘s failure to prove an essential element оf the crime, I would reverse the conviction.
Paul L. Douglas, Attorney General, and Terry R. Schaaf, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, MCCOWN, CLINTON, BRODKEY, and WHITE, JJ.
BOSLAUGH, J.
The defendant, Mark Schroeder, appeals from a sentence to imprisonment for 2 to 3 years for assault with intent to inflict great bodily injury. The defendant has assigned as error the trial court‘s refusal to instruct on the defense of justification, or сhoice of evils, as provided in
The assault took place in a cell at the Reformatory Unit near Lincoln, Nebraska. The defendant was confined in the cell with three other prisoners, one of whom was Gary Riggs, the victim.
The defendаnt was 19 years of age at the time of the offense. Riggs was 24 years of age. Riggs had a reputation among the other prisoners for sex and violence and the defendant was afraid of Riggs. In its brief the State concedes that Riggs had unquestionably placed the defendant in a position of general subservience.
The defendant testified that he did not want to gamble with Riggs but Riggs made the defendant continue to play cards and gamble. On the day before the incident, the defendant and the other two prisoners in the cell submitted a written request that Riggs be moved to another cell.
On the night the assault occurred the defendant and Riggs played cards until about 10 p.m. The defendant testified Riggs said that he might walk in his sleep that night and “collect some of this money I got owed to me tonight.”
The defendant went to bed about 10 p.m. but, apparently, was unable to sleep because of what Riggs had said. The defendаnt got up about 1 a.m., and stabbed Riggs in the back with a knife made from a table knife. Riggs was asleep at the time but awakened when he was stabbed. When Riggs tried to remove the knife from his back, the defendant struck Riggs in the face several times with a metаl ashtray. The guard was called and Riggs was taken to the hospital.
“(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
“(b) Neither
“(2) When the actor was reckless or negligent in bringing about the situation requiring а choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may bе, suffices to establish culpability.”
The defendant submitted a requested instruction based upon
The defendant was charged with stabbing with intent to kill, wound, or maim but the jury found the defendant guilty of the lesser offense of assault with intent to inflict great bodily injury. The State argues that the determination as to which harm or evil is greater is to be made by a comparison of the punishment prescribed by law for the acts in question. This does not appear to be a correct interpretation of the statute.
Under
The circumstance of confinement is an importаnt factor in this case. Under ordinary circumstances the actor has a duty to retreat if he can with complete safety avoid the necessity of using force by re-
The State further contends that the defense was not applicable because there was no specific and imminent threat of injury to the defendant. Riggs was asleep when the defendant stabbed him and Riggs had made no overt act or assault upon the defendant.
The rule in this state has been that in order to excuse or justify a killing in self-defense the defendant must have reasonably believed that his life was in imminent danger or that he was in imminent danger of suffering great bodily harm. State v. Goodseal, 186 Neb. 359, 183 N. W. 2d 258; State v. Archbold, 178 Neb. 433, 133 N. W. 2d 601; State v. Kimbrough, 173 Neb. 873, 115 N. W. 2d 422; Barr v. State, 45 Neb. 458, 63 N. W. 856; Housh v. State, 43 Neb. 163, 61 N. W. 571.
The present statutory requirement is that the actor believe such force is immediately necessary to protect himself against the use of unlawful force by the other person on the рresent occasion. Although the term “present occasion” may have relaxed somewhat the former requirement of imminent danger, the present statutory requirement is essentially the same requirement as existed prior to the enactment of
The problem in this case is that there was no evidence to sustain a finding that the defendant could believe an assault was imminent except the threat that Riggs had made before he went to bed. The general rule is that words alone are not sufficient justification for an assault. Grebe v. State, 112 Neb. 759, 201 N. W. 142. See, also, Commonwealth v. Cropper, 463 Pa. 529, 345 A. 2d 645.
This is a difficult case and we are of the opinion there are extenuating circumstances which justify a reduction in the sentence. The judgment is modified by reducing the term of imprisonment to 1 year, the statutory minimum. As modified, the judgment is affirmed.
AFFIRMED AS MODIFIED.
CLINTON, J., dissenting.
I respectfully dissent because I believe the defendant was entitled to an instruction under the provisions of
“(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged“; insofar as that such an instruction would relate to thе lesser-included offense of assault with intent to commit great bodily harm. That is the offense of which the defendant was found guilty. I do not believe he was entitled to such an instruction insofar as the offense of stabbing with intent to kill was concerned.
The comments to section 3.04 of the Model Penal Code, from which
In this case the defendant was faced with a threat by Riggs that he would “collect some of this money I got owed to me tonight.” The defendant could not be expected to remain awake all night, every night, waiting fоr the attack that Riggs had threatened to make. The defendant‘s evidence here was such that the jury could have found the defendant was justified in believing the use of force was necessary to protect himself against an attack by Riggs “оn the present occasion.”
Under the evidence in this case, which the majority opinion fairly states, I think that a factual question was presented for the jury to determine whether evil of forcible sodomy was greater than the evil of thе assault with intent to commit great bodily harm, where the assault was made to avoid a forcible sexual attack by Riggs. Forcible sodomy is surely a great wrong to the victim. Our statute recognizes the common law rule that one may use deadly force to protect oneself from a forcible sexual assault.
I would remand for a new trial.
WHITE, C. THOMAS, J., dissenting.
I join in the dissent of Clinton, J., except for that portion which suggests that the instruction was not required to be given with respect to the charge of assault with intent to kill. As stated in the dissent, “one may use deadly force to protect oneself from a forcible sexual assault.”