Dolan v. State

• Citation: 44 Neb. 643,62 N.W. 1090
• Parties: DOLAN v. STATE.
• Decision Date: 05 April 1895
• Court: Supreme Court of Nebraska

44 Neb. 643

62 N.W. 1090

DOLAN

v.STATE.

Supreme Court of Nebraska.

April 5, 1895.

Syllabus by the Court.

It is the duty of the trial court, particularly in criminal prosecutions, whether so requested or not, to present the issues to the jury by instructions, and a charge which, by the omission of certain elements, has the effect of withdrawing from the consideration of the jury an essential issue of the case, is erroneous. Carleton v. State (Neb.) 61 N. W. 699.

Error to district court, Lancaster county; Tibbets, Judge.

Charles E. Dolan was convicted of assault with intent to murder, and brings error. Reversed.Maule & Spencer and Chas. A. Robbins, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

POST, J.

This was a prosecution in the district court for Lancaster county on an information charging the crime of assault with intent to murder. A verdict was returned finding the accused guilty as charged, and, a motion for a new trial having been overruled, he was sentenced to a term in the penitentiary, which he seeks to reverse by means of this proceeding. The only assignment which we shall notice is that the charge of the court excluded from the consideration of the jury the question of the defendant's guilt of a lower grade of assault, and required them to convict, if at all, of the crime charged. The instruction to which exception is taken is as follows: “The assault by the defendant upon the person of Albert Eisler at the time and place alleged in the information is not denied, but it is contended by the defendant that at the time of the assault he was under the influence of liquor, and acted irresponsibly. Upon this point you are instructed that drunkenness is no excuse for the commission of a crime. You should consider, however, the testimony upon this point, in determining whether or not one of the elements necessary to constitute the crime existed, and that element is the intent of the defendant to kill Albert Eisler at the time of making the assault. If at the time of making the assault the defendant was under the influence of liquor, and to such an extent that he was unable to distinguish between right and wrong, and committed the act without any defined purpose to kill, he would not be guilty as charged. If, however, the defendant at the time of the assault was able to distinguish between right and wrong, and able to form a definite purpose in his mind to kill Albert Eisler, then the defendant is responsible for his act. In determining this question, if the evidence raises any doubt in your minds as to the formation of such intent by the defendant at the time of the assault, he is entitled to the benefit of the doubt, and should be acquitted.” The only reference which needs to be made to the defendant's evidence is that it tended strongly to prove that he was at the time of the alleged assault (by shooting with a revolver) intoxicated,--so drunk, in fact, that he was not conscious of the act...