118 Neb. 591 | Neb. | 1929
Morris Swartz was convicted of murder in the first degree while attempting to rob Roy L. Tinkham, the victim. The jury fixed the death penalty. Judgment was entered sentencing the defendant to death. Defendant brings the case here on error proceedings.
Plaintiff in error sets out many assignments of error. Some are argued but others are not. Such as appear to
Misconduct of one of the prosecutors is urged in this, that in his address to the jury he said: “I declare Morris Swartz guilty of murder in the first degree and I will prove it to you, men of the jury, by Swartz’ own attorneys. Let us see what they think of the innocence of Morris Swartz. At the opening of this case they offered to plead him guilty to second degree murder and to take life imprisonment in the state penitentiary but this offer was refused by the court. That is what his attorneys think of his innocence.”
The trial began on October 1, 1928, and was concluded on the 4th day of that month. The bill of exceptions does hot show that the final arguments were reported or that any objection was made during such argument. Indeed, it shows that one of the counsel for the defendant, by affidavit sworn to by him on November 2, 1928, and filed on that day, first brought this alleged language of the prosecutor to the notice of the court in its entirety. He had, however, on October 18, 1928, sworn to an affidavit, which the -bill of exceptions shows was filed October 24, 1928, in which he attributed to the prosecutor this language in the final argument: “Gentlemen of the jury, let us see just how innocent the defendant Swartz is. Let us see how innocent his own attorneys think he is. At the opening of this trial they (meaning the attorneys for Swartz) offered to plead him guilty to second degree murder and to take life imprisonment. That’s what they think of his innocence.” On the hearing of the motion for a new trial, the bill of exceptions shows the prosecutor expressly denied that at any time during the argument he made the statement either in tenor or effect that “I declare the defendant guilty of murder in the first degree.”
Had he made such a statement to the jury as to his belief in defendant’s guilt, it would have been very reprehensible and prejudicial. That he made it has doubt cast upon it by the failure of defendant’s attorney to include it in the first affidavit made on the subject. However, de
Plaintiff in error complains because the court refused an instruction requested by him to the effect that the jury
Plaintiff in error in his brief makes rather casual references to section 9544 as “unconstitutional,” but does not point out any legal reasons for the unconstitutionality. As no particular ground therefor is pointed out or obtrudes upon our consciousness, we do not find it necessary to pass on that question in this opinion.
In the last paragraph of their brief, counsel for plaintiff in error say:
“Personally the writers believe that society and the man himself would be better served and protected were this court to commute the sentence of defendant to life imprisonment, and so defendant respectfully moves the court for the reasons above set forth for an order commuting the sentence of defendant Morris Swartz from death to life imprisonment, or to grant him a new trial, as this court in its judgment deems best.”
Roy L. Tinkham, the owner of a drug store on the northeast corner of Thirty-third and Cumings streets, in Omaha,
Upon the trial evidence was introduced by and on behalf of the defendant tending to prove that the condition of mind of the defendant was such at the time of the commission of the act that he was not of sufficient mental capacity to understand the difference between right and wrong as to the particular act charged and to know that the act was wrong. Upon this point the jury were appropriately instructed that the burden was therefore upon the state to prove the defendant’s mental capacity beyond a reasonable doubt.
Defendant’s plea for a commutation of his sentence, which we have quoted from his brief, is based on the power of judicial clemency conferred on this court by section 10186, Comp. St. 1922.
There is no doubt in our minds, after reading the entire record, that the defendant had long been a slave to the use of heroin, cocaine, and morphine. Much of the evidence produced before the jury was his own testimony on the subject. But he was so fully corroborated as to his habit by his physical condition that the fact seems clear to laymen as well as to experts.
Substantially this is his history, sketched from the hypothetical question put by the prosecutor to the state’s expert, but based on the evidence. Born in July, 1898, in Paris, France, premature by two months, of a tubercular mother, who died shortly after his birth; within six months his father brought him to Philadelphia and within a year placed him in the care of his grandparents, remarried and has had nothing to do with him since; at a tender age he fell out of a second story window, injuring his head, but leaving no marks; his grandparents reminded him he was not wanted; at the age of seven he broke a leg, at eight some
On Saturday morning they tried unsuccessfully to purchase morphine and broke into the office of certain dentists,
Expert testimony indicates that the drug addict, contrary to general belief of the laity, does not crave drugs to produce in himself agreeable feelings, pleasant dreams, and enjoyable illusions, but he takes the drug because he cannot exist normally without it; his body will not function right until he has taken his daily dose of the narcotic to which his body has become accustomed; the sudden cutting off of a drug like morphine produces, first, a condition of extreme restlessness, and later on that restlessness reaches the degree of delirium unless alleviated; the patient suffers extreme pain in the abdomen and in all his muscles, particularly of the side and arms; soon there is a condition of nausea and vomiting, the bowels become loose, and the patient has itching and intolerable irritation all over the surface of his body; the suffering is often intense; at times the patient will go into collapse, and in frequent instances,
The evidence indicates that the defendant weighed 116 pounds when he entered the county jail and in a period of about six weeks, up to the time of the trial, had gained so that he then weighed 140 pounds. He was given treatment by the jail physician and received drugs very sparingly and only when officially administered. He paid that jail this tribute in his evidence: It was the only jail he had ever been in where' narcotics could not be secured by an inmate.
The killing of so estimable a citizen as Roy L. Tinkham was a despicable act, shocking to all law-abiding people of the community. Aided by his good wife, who had worked in the store, with him for 23 years, he had built up a praiseworthy reputation as a fine business man and a good citizen and had accumulated a very comfortable fortune. While the circumstances did not prevent the defendant from having a fair and legal trial, which we think the record shows he had, yet the tendency of all things naturally concurred toward a finding by the jury of the death penalty against a defendant who held the gun and fired the fatal shot. Without in any way criticizing the jury, the case makes a somewhat different appeal to us, upon reading the record and after a longer lapse of time, than it made to the jury, and probably would have made to us, on a hearing so soon after the tragic event. We think this is an instance where the judgment may be modified without doing violence either to the intent of the legislature or to the ultimate interests of society.
Under the provisions of section 10186, Comp. St. 1922, the judgment of the district court is modified to the extent that the penalty imposed is changed from the death penalty to imprisonment for life. As thus modified the judgment is affirmed.
Affirmed as modified.
Note — See Homicide, 29 C. J. 1106 n. 47, 1117 n. 68, 312 n. 42; 63 L. R. A. 354; 13 R. C. L. 776; 4 R. C’. L. Supp. 832.