115 Neb. 94 | Neb. | 1926
Oscar W. Vanderpool, hereinafter designated as defendant, was convicted in the district court for Gage county of an assault upon one L. E. Shurtleff with intent to inflict great bodily injury. By the judgment of the court, he was sentenced to serve a term of three years in the penitentiary. Alleging there was error upon the trial, defendant, as plaintiff in error, has brought the record of his conviction to this court for review.
It is first urged by defendant that the evidence is insufficient to sustain the verdict and the judgment. It appears that on the afternoon of December 10, 1925, defendant drove his automobile into the barnyard of one Lee Feerhusen, turning his car around so as to face the gate leading into the premises. He was alone and had 30 gallons of rye whiskey in his car. As he sat in his car, he engaged in conversation with Mrs. Feerhusen, and, among other things, stated that he had heard the officers had searched their place and asked if it were true. He was told they had. After some general conversation, defendant said to Mrs. Feerhusen: “If any one drives in, you go to the house.” A few minutes later, L. E. Shurtleff, deputy sheriff, and Richard Steele, his assistant, who had suspected that defendant was engaging in the unlawful sale of intoxicating liquor and had been trailing him most of the day, drove into the yard. According to the state’s testimony, as the car in which the officers were riding came to a stop near defendant’s car, Shurtleff alighted and, going to the left of defendant’s car and the side on which he was
After being subdued, defendant stated that he was a bootlegger and boasted of the fact; that he had sold 60 gallons that morning, and further stated: “It 'is a good thing the little girl was standing right behind you when you came up to the car or you would have been a dead man.” Both revolvers were loaded. The one which defendant pointed at Shurtleff had the safety down and was ready for action. Other witnesses on behalf of the state tended to corroborate the evidence above outlined.
Defendant testified 'in his own behalf. In giving his version of the transaction, he stated that he was a bootlegger and carried the guns to protect himself against highway robbers and hijackers; that when Shurtleff and Steele came toward him he thought they might be highwaymen and drew his gun for self-protection. Steele had a gun in his hand. Defendant testified: “As they came up, I just opened the door and stuck my gun out like that (indicating) and said, ‘Back up there and tell who you are.’ ” At that time Shurtleff was within three feet of the car. He stated
Under this state of the record, we are of the view that the question of whether there was an unlawful assault to inflict great bodily injury was for the jury to determine. It is an assault for a person to unlawfully point a loaded revolver at another in a menacing or threatening manner. Whether such act is done with intent to inflict great bodily injury must be determined by all of the facts and circumstances of each particular case. The mere fact that defendant did not shoot when he had the opportunity does not necessarily show that he did not intend to do so. The intent of the assault and not the act in fact committed, provided there was an assault, constitutes the gist of an assault with intent to inflict great bodily injury.
In discussing the general question of intent to inflict great bodily injury, the rule is stated in 5 C. J. 740, sec. 218, as follows: “To constitute the offense under consideration there must be an assault which must be unlawful and coupled with a present ability to injure, but no battery need occur. As has been noted, the intent of the accused and not the act committed determines the character of the assault. * * * Therefore 'it has been held that the assault may be committed with an unloaded firearm, the intent being present, as where the assailant believed his weapon to be loaded.” In Keefe v. State, 19 Ark. 190, defendant drew his pistol, pointed it toward the heart of the com-' plaining witness, and said: “If you do not. pay me my money, I will have your life.” Complaining witness told defendant that if he would go back to the house he would
It Is next urged that the court erred in giving certain instructions. We deem it unnecessary to prolong this opinion by a discussion of the criticisms addressed against the separate instructions. It is true certain instructions standing alone are faulty, but when construed as a whole the instructions correctly state the law. It is a well-established rule that instructions must be construed together. Clary v. State, 61 Neb. 688.
It is also urged that the court erred in permitting evidence to be introduced, over the objections of the defendant, pertaining to the details of a previous conviction of the defendant for felony. Defendant was a witness in his own behalf and as such subjected himself to the same rules as to cross-examination as apply to any other witness. Section 8848, Comp. St. 1922, provides: “A witness may be interrogated as to his previous conviction for a felony. But no other proof of such conviction is competent except the record thereof.” Acting under the provision of the statute and over the objections of the defendant, which are omitted, but which are full and ample to preserve defendant’s rights, the county attorney made this record: “Q. Mr. Vanderpool, have you ever been convicted of felony or pleaded guilty to a felony? A. Yes, sir. Q. When? A. Well, its, let’s see, it has been quite a number of years back. Q. What was the charge? A. For fighting. Q. Is it not a fact that it was cutting with Intent to kill?
We think the trial court erred in permitting the county attorney to press his cross-examination upon the question of the previous conviction of defendant beyond the point contemplated by the statute, and that under the facts and circumstances in this record the defendant was prejudiced by the ruling. While no request was made by defendant for an instruction on the question of the previous conviction of defendant, we think the better practice to be that the court should instruct the jury that evidence as to previous conviction of the accused of a felony is to be considered only as affecting his credibility as a witness and not as tending to prove the crime charged. Without such an instruction the jury are apt to regard the previous conviction as a circumstance tending to prove guilt of the offense for which accused is being tried. In Keating v. State, 67 Neb. 560, it is held: “By virtue of the statute, a prior conviction of a felony may be proved for the purpose of affecting the credibility of a witness, and the court may properly instruct the jury as to the purpose of such evidence.”
It is also urged that the court erred in permitting certain witnesses called by the state, on rebuttal, to contradict certain evidence of witnesses for defendant, which was collateral to the main issue. Some of these instances are of a trivial character and we would not feel justified in reversing the judgment on that ground alone. The rule is well settled, however, that, “When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question. The test as to whether a fact inquired of in cross-examination is collateral is, would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea? Ferguson v. State, 72 Neb. 350; Johnston v. Spencer, 51 Neb. 198.
Reversed;