Schlenker v. State

• Decision Date: 31 July 1879
• Parties: HENRY A. SCHLENKER, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 241

1 N.W. 857

HENRY A. SCHLENKER, PLAINTIFF IN ERROR,

v.THE STATE OF NEBRASKA, DEFENDANT IN ERROR.^*

Supreme Court of Nebraska.

July, 1879.

Error from the district court of Lancaster County.Philpot & Courtenay, for plaintiff in error.

The Attorney General, for the state.

LAKE, J.

––From a careful reading of the evidence as embodied in the bill of exceptions we have reached the conclusion that it is sufficient to support the verdict of the jury. That the prisoner shot and killed the deceased without any just cause or provocation is placed beyond all question. Therefore, if the act of shooting was voluntary, as it must be presumed in law to have been, in the absence of proof to the contrary, it was necessarily unlawful; and, under these circumstances, the act was also malicious, for the rule is that if a man kill another without considerable provocation the law implies malice, for no person, unless of an abandoned heart, would be guilty of such an act upon a slight, or no apparent cause. Broom & Hadley's Com. vol. 2, p. 434, (Am. Ed.) And, in addition to its being unlawful and malicious, to make the act of killing murder in the first degree, it is only necessary to establish that it was done with deliberation and premeditation, of which there was some evidence in the previous acts of the prisoner on the day of the homicide, among which is the important one of borrowing and arming himself with a revolver, from which he fired the fatal shot. As to the sufficiency of the evidence on this, as well on all other branches of the case, that is a matter wholly within the province of the jury to settle. Palmer v. The People, 4 Neb. 63. This court has neither the right nor the disposition to usurp the province of the jury, or to interfere with their decision of questions of fact, unless the want of sufficient evidence to support their finding is very clear. This is all that need be said on this branch of the case, and we will now proceed to examine as to the alleged errors occurring in the admission of testimony, and in the instructions of the jury.

The record shows that on the conclusion of the cross–examination of Dr. Paine, a witness called on the part of the state, he was re–examined by the district attorney as to the extent of the wound upon the body of the deceased, of which he had given a general description in his direct examination. The witness being asked to give the diameter of the wound as nearly as he could, this was objected to on the ground that it was not a proper re–examination of the witness, inasmuch as it did not relate to any matter called out on the cross–examination. The general rule on this subject doubtless is, as claimed by counsel for the prisoner, that the re–examination should be limited to the points arising out of the cross–examination; but while this is the rule usually observed by courts, it seems to rest entirely in the discretion of the judge whether it ought to be strictly enforced or remitted as he may think best for the discovery of the truth and the administration of justice. 2 Phillips on Evidence, 912.

Dr. Gilbert, one of the witnesses for the prosecution, in explaining to the jury the comparative sizes of a bullet said to have been taken from the body of the deceased, and the wound of which she died, having testified that “the wound looked smaller than the ball,” was asked by the district attorney to explain why this was so, and “whether that would have been the case had the ball gone through the body––on the other side how would it have looked.” This was objected to by the prisoner's counsel as “immaterial and irrelevant.” The object of the question evidently was to have the jury understand that it was not at all remarkable or unusual that in this case the orifice appeared to be considerably smaller than the missile that they were asked to believe produced it. And this testimony was very proper, for it rested upon the prosecutor to convince the jury that the wound in question was made by the identical bullet then exhibited to them. Nor was it at all improper to state a supposed case, and thus show what, under different conditions, the appearance of a wound made by the same agency might or would have been. There is no just ground of complaint in this particular. Again, it was contended in argument that the court erred in not restricting the cross–examination of the witness Kleutsch, by the district attorney, “to the facts and circumstances drawn out on his direct examination.” While the rule governing the cross–examination of witnesses is as claimed by the counsel for the prisoner, the record shows that its violation was not the ground of complaint in the court below. The only objection there made was “irrelevant and immaterial.” The testimony referred to may have been open to the technical objection made here, but it most certainly was not to those brought to the attention of the trial court. This being a court for the correction of errors, our examination of questions relating to the evidence is confined to...