121 Neb. 696 | Neb. | 1931
Jake Swartz and Dick Swartz complain that they were erroneously convicted and sentenced on the charge of shooting Harold Swartz with intent to kill.
They argue that the court erred in allowing the state to bring into the presence and view of the jury, over their objection, certain bloodstained garments that were worn by Harold Swartz when he was shot. The clothing was identified and testimony was received concerning it during the presentation of the state’s case in chief. When offered in evidence just before the state rested, it was objected to on behalf of defendants as immaterial and not tending to prove or disprove any of the issues. The objection was sustained by the court without argument or comment. The record shows no undue display of these garments and we find no prejudice against the defendants in respect thereto.
Defendants assert error in that the court did not order the witnesses to remain segregated after they had testified. Before the trial began the defendants invoked “the rule for the exclusion of witnesses.” The proceedings show merely that the court said “Sustained.” What directions the court gave the witnesses and the sheriff at
The chief point stressed by defendants in their brief and oral argument is that the state failed to make specific proof of their intent to kill Harold Swartz.
Jake Swartz and Dick Swartz,. father and son, lived on a farm seven miles southwest of McCook. The home of Harold Swartz, aged twenty, is seven miles southeast of Trenton, but he had been staying at Arthur Donelson’s, near the Swartz home, for about ten days, shucking corn. Mrs. Donelson, his aunt, is his father’s sister. The defendants are his uncle and cousin. There was evidence that Jake Swartz was about six feet three inches tall, and weighed about 240 pounds; that Dick Swartz, aged 23, was six feet one and a half inches tall, and weighed-about 180 pounds; and that Harold Swartz is about five feet three inches tall, and weighed about 130 pounds.
On the forenoon of November 21, 1930, about 10 o’clock, Harold took a 22 caliber repeating rifle and went hunting. His expedition took him upon the farm of Jake Swartz. The latter testified that he saw Harold hunting there and spoke to him, whereupon Harold reviled him, and
The wooden stock of the shotgun was shattered and broken almost completely in two at the point of the hand-grip. When Harold was examined by a surgeon in McCook later in the day, the surgeon testified to a wound made on his head by some instrument; that the blow was at the time developing a paralysis on that side of his head; and to a gunshot wound appearing to have been made by a
Both Jake and Dick testify to quite a different state of facts. Their testimony indicates that Harold was the aggressor, that he shot Dick in the chest and arm, and when Jake then called to him to put down his gun he turned and shot Jake in the thigh or hip, and then fired two more shots at Jake, but missed him and loaded his gun again. Jake testified as to events at this point: “By that time I made up my mind to put the boy out of commission, and I aimed to shoot him in the shoulder.”
Without further extending the recital of the evidence, it suffices to say that the defendants made out a strong case of self-defense, which was carefully submitted to the jury in the court’s instructions. It was a question of fact peculiarly in the province of the jury to decide whether the defendants or Harold Swartz told the truth as to what occurred at the time of the shooting affray.
Jake having testified that it was not his intention to kill Harold but merely to prevent him from doing further harm, the defense argues that, not only has the intent not been shown by the state, but that it has been disproved by the defense.
It seems that in cases like this, where intent is an essential element of a crime, proof of such intent is indispensable to support a conviction. Botsch v. State, 43 Neb. 501; Ward v. State, 58 Neb. 719; Clary v. State, 61 Neb. 688; Garrett v. State, 110 Neb. 118; 16 C. J. 81. While the foregoing authorities state this to be the rule they also state: “It (the intent) may be gathered or drawn from all the evidence, facts, and circumstances of the case, inclusive of the act, and is a matter of fact for the consideration and decision of the jury.” Ward v. State, supra. “The intent with which an act is done is inferable from the act itself, and from the facts and circumstances surrounding it.” Clary v. State, supra. “But it is sufficient in such cases to prove facts from which the specific in
So, we are of the opinion the intent was sufficiently proved and no error was made by the court in submitting that question to the jury. Nor do we think the verdict is opposed to physical facts shown to exist, nor in flat contradiction of recognized physical laws, as argued on behalf of defendants.
We have covered most of the questions argued. Other errors are assigned and some of them are briefly mentioned in the argument. We have examined the transcript and evidence carefully and find no reversible error.
Considering all the circumstances in the case, we are of the opinion that the sentence of seven years is excessive. It is our judgment that the ends of the law and the good of society will be served by reducing the sentence to three years, which is hereby done, under the authority of section 29-2308, Comp. St. 1929. As thus modified, the judgment of the district court is affirmed.
Affirmed: Sentence reduced.