92 Neb. 755 | Neb. | 1913
The plaintiff in error, hereafter called the defendant, was convicted in the district court for Madison county of the crime of manslaughter, by negligently causing the death of his stepson, a child about four years of age. He was sentenced to the penitentiary for a term of from one to ten years, and to reverse the judgment of the district court has brought the case here by a petition in error.
It is his first contention that the evidence is insufficient to sustain the verdict. From a careful reading of the bill of exceptions it appears that the defendant is a native of Germany, and prior to his removal to this country resided in the city of Hamburg; that on the 6th day of April, 1909, he was married to one Minnie Loco, who was at that time the mother of an illegitimate child about two years of age, called “Kaurt;” and who, after the marriage, was known as Kaurt Stehr; that in July, 1910, the defendant left his wife, his infant child, and his stepson Kaurt in Hamburg and came to Norfolk, Nebraska; that afterwards, and in the month of October, defendant sent
The indictment charged the defendant with murder in the first degree, which, of course, included the lesser crimes of murder in the second degree and manslaughter. The district court instructed the jury to find the defendant not guilty of first or second degree murder, and the cause was tried and submitted to the jury on the theory that defendant, being charged with the duty to control and support the deceased child, wilfully and negligently caused and permitted its life to be endangered after having knowledge that its feet were badly frozen, and wilfully failed and neglected to summon medical aid or make known its condition, thereby causing its death.
Defendant predicates error on the court’s instructions from paragraphs 7 to 17, inclusive. We find that paragraph 7 explains the law as declared in section 43, ch. 34, Comp. St. 1911. It incorporates a part of that section, and, as we view it, is not erroneous. By paragraph 8 of the instructions the jury were informed that “to do an act wilfully is to do it voluntarily.” No specific objec
It is strenuously argued that instructions 7, 8, 9, 10 and 11 are in conflict with instruction 14. By this instruction the jury were told that the defendant should be convicted of manslaughter, if they found, beyond a reasonable doubt, that he realized the condition of the child’s feet for such a length of time, previous to calling a physician, that by calling such physician the child’s life might have been saved; or that he was culpably negligent in not taking steps to know and realize the condition of the child’s feet. We are of opinion that there was no conflict in the instructions.
It is also argued that the words, “and instructions of the court,” found in instruction 17, defining a reasonable doubt, rendered the whole paragraph erroneous. It should be observed that this case is one where it was the duty of the court by proper instructions to define the degree of negligence which would render the defendant guilty. Therefore it was the duty of the jury to take into consideration the instructions of the court on that question in order to enable them to reach a proper verdict.
Error is also predicated on the refusal of the court to
Finally, it is contended that the court erred in the admission of evidence showing the existence of bruises, scars and marks on the body of the child. It appears that very littlé of thát evidence was objected to by the defendant. In fact, the witnesses for the defense described the condition of thé child’s body, and the jury were instructed that evidence of that kind should only be considered in determining whether the defendant’s attitude toward the child was such as might cause him to be negligent in his failure to secure medical aid after he ascertained that the child’s feet were badly frozen.
It is also stated that the newspapers of Madison county were filled with sensational accounts of defendant’s treatment of the child at the time of its death, to defendant’s prejudice. It appears, however, that the trial took place some nine months after the child died, and it is not apparent that the newspaper statements complained of, íd any manner, influenced the jury in arriving at their verdict.
In conclusion, it may be said that the defendant is a man of at least average intelligence; that the people who advanced him the money with which he paid for the passage of his wife and children lived within a stone’s throw of his house, he knew them in Germany, and they had helped him; that at every point of the compass his nearest neighbor was a German with whom he could counsel' and advise; that they were a thrifty, charitable people, and a word from him would have brought all of the assistance that he needed; and it appears that, as soon as his wants were made known, medical assistance and material aid were immediately brought to him.
As stated by counsel, this is a difficult case, and suggests a seasonable application for executive clemency; but, as we view the record, it contains no reversible error,
Affirmed.