74 Neb. 471 | Neb. | 1905
In March, 1903, one Norman T. Bliss was shot and killed by the defendant in Hall county, Nebraska. The defend
1. There appears to be some complaint made in the voluminous brief filed that the allegations of the information are not sufficient to support the conviction, and we find that this objection was made upon the trial, and that the point is preserved in the record. It is difficult to determine from the brief upon what ground this objection rests, and upon examination of the information it appears to be in the usual form and to contain allegations of all the facts necessary to constitute the crime of which the defendant was convicted.
2. There is also a contention in the brief that the evidence is not sufficient to support the verdict. The defendant had leased the farm adjoining the premises occupied by the deceased, and the day before the shooting occurred had brought his family to the farm, which he had leased. It appears that the deceased did not reside upon the premises occupied by him, but on the morning of the homicide he, with his young son, took some cattle and other property there, and soon, after their arrival discovered that some trespassing pigs were destroying com which was piled in an inclosure near the house upon the premises. They drove these animals away some considerable distance through the stubble fields and corn-stalks, and, while doing so, chased them with pitchforks and killed two small pigs of about 25 pounds each. There was evidence from which the jury were plainly justifiable in finding that these animals belonged to one Barnhart, from whom the defendant had leased the place that he occupied, and that the defendant had, by authority of the owner, assumed the care of the animals, and that the premises were so situated that
On the one hand, it is contended by the state, and there is evidence tending to support the contention, that it was the chasing and killing of these animals by the deceased which caused the defendant to leave his house; that his purpose was either to prevent further injury to the animals or to punish the deceased; that from the time he left the house he walkedly rapidly toward the deceased, and that the deceased, seeking to avoid contact with him, started for the house upon the premises which he occupied, and that the defendant changed his course from time to time, so as to intercept the deceased, and that finally, when they came in contact, the defendant asked the deceased whose pigs he was chasing, and was answered that they were Mr. Barn-hart’s pigs; that he then asked the deceased how many of them he had killed, and was told not to ask too many questions; that, when this altercation began, the defendant was in the field upon the premises occupied by and in the possession of the deceased, and the deceased was in the public highway adjoining these premises; that thereupon the deceased passed through the wire fence into his field, and ordered the defendant to get off from his premises, and then started toward his home, walking in a general direction away from the defendant; that the defendant thereupon followed the deceased for a few steps, and then, being a short distance, perhaps two rods, from the deceased, the defendant discharged his gun toward the deceased,, striking him in the arm and back, and wounding him; that there
3. After the trial was completed, it was discovered that one of the jurors had formerly been convicted of felony in the district court for Hall county, and had served a term in the penitentiary, pursuant to a sentence imposed upon that conviction. The sentence was on the 3d day of March, 1886, and was for the term of one year. The convict was allowed two months for good behavior, pursuant to the statute, and was discharged on the 5th
4. The shooting occurred, as before stated, upon premises which Avere in the possession of the deceased. Objection was made to the introduction of a lease of these premises to the deceased. This lease was introduced only for the purpose of showing the deceased’s right of possession, and the court in its instructions expressly so stated to the jury. It was of course competent to sIioav that the deceased Avas in the peaceable possession of these premises, from Avhich it was contended on the part of the state he had ordered the defendant at the time of the shooting. It may be that the introduction of this lease was unnecessary; that the other evidence sufficiently
5. It will be remembered that an important question that was disputed upon the trial was whether the deceased at the time of the shooting was making or threatening to make an assault upon the defendant, or was, on the other hand, seeking to avoid a conflict with him. It was shown by the position of 'the body that the deceased, when shot, did not fall toward the defendant, but in an opposite direction. Dr. George Boeder was called as a witness by the state, and qualified as an expert physician and surgeon. After testifying at large to an examination of the body and his qualifications as an expert, he was asked this question: “Doctor, assuming that a man received a charge of shot in the right chest, the charge you describe as entering the right chest of Mr. Bliss, when he was standing still, and being about twenty-five feet distant from the person who shot him, do you know in what direction he would fall?” and answered, “Yes, sir.” He was then asked in what direction. Objection to this question was sustained, and it was not answered. The witness Avas then asked if he had had military service or special study as a military surgeon, and ansAvered that he had, and then was asked this question: “Noav, doctor, assuming that a man was charging forward at a rapid gait, and Avould receive a gunshot wound, like the one you have described as entering the right chest of Mr. Bliss, being some tAventy-five feet distant from the person shooting him, do you know Avhat direction he Avould fall?” and ansAvered, “Yes, sir.” He was then asked: “You may state in what direction he would fall.” His ansAver Avas: “He Avould fall in the direction of the momentum of the body at the time of the shooting.” A motion Avas made to strike out the answer, for the reason, among other things, that he bases his answer on common knowledge of facts
It seems clear that the objection to the question was well taken. Matters of common observation and matters upon which jurymen are as capable of forming opinions as medical men are not matters for expert testimony. 2 Elliott, Evidence, sec. 1,094. The answer which the witness made to this question shows that he did not regard it or answer it as a medical question, and it cannot be properly so regarded. The testimony therefore should have been excluded; but it is not pointed out in the brief in what manner the defendant could have been prejudiced by this answer. It had already been shown conclusively in the evidence, not only by this witness but by others, that from the nature of the wound the deceased would, have no control whatever of his motions after receiving the wound. That being the case, we take it that the proposition that a human body, when suddenly deprived of all self-control, will fall in the direction of the momentum of the body is a truism with which all intelligent men must be presumed to be acquainted. This answer of the witness therefore could not be prejudicial to the defendant. When Dr. Smith was testifying, he was asked substantially the same question. It was objected, among other things, that “it is a matter to be determined by facts and physics, supposed to be familiar to everybody, and further that it would depend upon whether the force of the charge was sufficient to overcome the force presented by the body. * * * The body Avould keep on moving in the direction it was going by receiving a bullet or shot wound, for the momentum of the body is so much greater than the momentum of the shot, being 2,500 times heavier.” The question was then Modified as follows: “Then, you say the body would go on in the direction in Avhich it was moving at the time the shot was received?” There was qo objection to this question, and the Avitness answered:
Some other objections were made to the ruling of the court in receiving and excluding evidence, but we do not find any errors in that regard. The witness Earl Bliss, a young son of the deceased, testified that at the time of the first shot the deceased was going away from the defendant, and it appeared that the second shot took effect directly in the breast of the deceased. This -witness was asked: “Do you know of anything that made your father turn around toward Turley, so that he faced him?” And it is now urged that the court erred in refusing to allow this question to be answered. Also, the same witness was asked: “Now, then, if your father was only five feet west of Mr. Turley when he stood there in the road, and as he' came through the fence, I want to know how he got to be two rods west of him?” The witness was not allowed to answer this question, and the ruling, it is contended, was erroneous. Both of these questions are in their nature argumentative, and, taken in connection with the questions that preceded them, were clearly so. Defendant’s attorneys were allowed great latitude in the cross-examination of this witness, and the matters apparently' aimed at in these questions were thoroughly investigated. It was clearly Avithin the discretion of the trial court to exclude such questions. The other complaints upon the exclusion of evidence are of a similar nature and do not require further discussion.
6. It was claimed that the tracks made by the parties at the place of the shooting, as seen by witnesses immediately after the shooting, indicated that the deceased had
7. Nearly all of the 31 instructions given by the court upon its OAA’n motion are complained of. As to the most of these instructions there seems to be no ground of complaint Avhatever. They are, so far as Ave can see, clear and satisfactory in their statement of the laAV to the jury. Some of the objections, liOAAmver, Avill be noticed. The fourth and fifth instructions given by the court to the jury are as follows: Instruction numbered 4: “You are further instructed that a reasonable doubt is an actual, substantial doubt arising from the evidence or want of evidence in the case.” Instruction numbered 5: “By tin», term reasonable doubt, as herein used, is not meant a mere caprice, conjecture or groundless possibility. It is an actual, substantial doubt, based op a reason arising either
8. In the next instruction the jury were told that, “when competent evidence has been introduced tending to prove that he did so act (in self-defense), it is incumbent upon the state to prove to you beyond a reasonable doubt that he did not so act, and if, upon a consideration of all the evidence in this case, you entertain a reasonable doubt as to whether the defendant acted in self-defense, it is your
9. The nineteenth instruction given by the cofirt is as follows: “You are instructed that if you believe, from the evidence as explained in these instructions, that at the time the said defendant is alleged to have shot the said Norman T. Bliss the circumstances surrounding the defendant were such as in sound reason would justify or induce in his mind an honest belief that he was in danger of receiving from the said Norman T. Bliss great bodily harm, and that defendant did so believe, and that .the defendant in doing what he then did was acting from the instinct of self-preservation, then he is not guilty, although there may in fact have been no real or actual danger.” It is doubtful whether one who is the subject of a vicious assault is required in all cases to use sound reason in determining what he should do. If he acts as an ordinarily reasonable and prudent man would act under such circumstances, it is, perhaps, all that would be required of him. The language in this, instruction, then, is not to be commended. This instruction follows one in which it is stated that “where, from the nature of the attack, there is reasonable ground to believe that there is a design to take his life or to do him great bodily harm, and the party attacked does so believe, then the shooting of the assailant under such circumstances will be excusable or jus
10. The objection made to instruction numbered 18, given by the court upon its own motion, is of a more serious character. That instruction is as follows: “You are instructed that in this case the defendant, William T. Turley, sets up the plea of necessary self-defense. The rule of law on this subject of self-defense is, where a man without fault, in the laAvful pursuit of his duties, is attacked, and where, from the nature of the attack, there is reasonable ground to believe that there is a design to take his life or to do him great bodily harm, and the party attacked does so believe, then the shooting of the assailant under such circumstances will be excusable or justifiable, although it should afterwards appear that no injury Avas intended and no real danger existed.” In this case the jury may well have found from the evidence that the defendant was not without fault. According to his oAvn evidence he was engaged in hunting on the Sabbath day, and he was a trespasser upon the land occupied by the deceased. It was admitted by all parties that he was not “in the lawful pursuit of his duties.” In Hans v. State, 72 Neb. 288, an instruction similar to this, but omitting the words “without fault,” was held to be prejudicially erroneous. In that case there was evidence tending to show that the defendant was a trespasser at the time of the homicide, and was therefore acting unlaAvfully. The instruction there complained of was followed with a more particular instruction as to the right of self-defense, but this made that right depend upon the existence of a non-essential fact which was in dispute. In the case at bar circumstances in evidence were of such a character as to make the fault of this instruction still more apparent. The conclusion is unavoidable that the instruction was not applicable to the facts in the case. We think, however, that this error is not of
11. The defendant requested the court to instruct the jury as follows: “You are instructed that if you find from the evidence that the deceased Norman T. Bliss assaulted defendant, Turley, with a pitchfork, then the law does not require that defendant Turley flee from his assailant, but he might stand his ground and meet force with force.” If the abstract proposition of law embraced in this instruction is correct, still we do not think that the refusal to so instruct the jury in this case is reversible error. The jury might have thought from the evidence that the deceased was entirely justifiable in ordering the defendant from his premises, but that the conduct of the deceased in insisting
12. Exception is taken to some of the language used by counsel for the state in the closing argument to the jury. Some of these expressions are copied in the record and are discussed at large in the briefs. The main objection taken seems to be not so much to any particular statement or form of expression used as to the general character of the argument. We cannot, of course, present the argument complained of here. It is sufficient to say that we do not find therein any serious violation of the rights of the defendant.
Another point urged in the brief and discussed quite at large is that the court erred in not granting a new trial on the ground of newly discovered evidence. There was a large mass of evidence produced upon this point on the hearing of the motion, and we do not feel justified in taking the time and space necessary for a statement and discussion of the question. The evidence supposed to be newly discovered was cumulative in its character and of doubtful importanca
Other questions suggested in the brief have been considered, but are not of such importance as to require further discussion.
We find no error in the record, and the judgment of the district court is
Affibmed.