Argabright v. State

• Decision Date: 20 October 1898
• Citation: 56 Neb. 363,76 N.W. 876
• Parties: ARGABRIGHT v. STATE.
• Court: Nebraska Supreme Court

56 Neb. 363

76 N.W. 876

ARGABRIGHT

v.STATE.

Supreme Court of Nebraska.

Oct. 20, 1898.

Syllabus by the Court.

1. Evidence examined, and held sufficient to sustain a verdict of murder in the first degree.

2. The fourth and thirteenth instructions were based upon the evidence adduced on the trial.

3. The order of introducing testimony designated by section 478 of the Criminal Code will not preclude a defendant from introducing, in a proper case, testimony to impeach a witness examined by the state on rebuttal.

4. The order of introducing testimony in a criminal case rests largely in the discretion of the trial court, and an abuse of discretion in that regard is sufficient ground for reversal.

Error to district court, Nemaha county; Letton, Judge.

John W. Argabright was convicted of murder, and brings error. Reversed.W. H. Kelligar and H. A. Lambert, for plaintiff in error.

C. J. Smyth, Atty. Gen., Ed. P. Smith, Dep. Atty. Gen., and E. Ferneau, Co. Atty., for the State.

NORVAL, J.

John W. Argabright was prosecuted by indictment, in the district court of Nemaha county, for the murder of William Smelser. A trial resulted in the conviction of the accused of the crime of manslaughter, and the sentence imposed upon him was reversed by this court at the September, 1896, term, for the giving of an erroneous instruction, and the cause was remanded to the court below for further proceedings. 49 Neb. 760, 69 N. W. 102. The defendant was the second time placed upon trial, which terminated in a verdict of murder in the first degree, the jury fixing the punishment at imprisonment in the penitentiary for life, and this was the sentence imposed by the court. The record is again before us for review.

While the motion for a new trial and petition in error each contain more than 50 assignments of error, the questions discussed in argument, and relied upon to secure a reversal, are confined to very narrow limits. The first point urged upon our attention is that the verdict is not sustained by sufficient evidence. The record shows without controversy that the accused was a son-in-law of the deceased, William Smelser, and for more than a year prior to the tragedy resided in South Omaha, and a portion of the time was on the police force of said city. His wife and two children lived with him until the fall of 1893, when, owing to domestic trouble between the accused and his wife, a separation took place. The wife returned to Nemaha county with the children, and made their home with her father. In November, 1893, the accused went to said county to visit his children, and, on the road from the railroad station to Smelser's, he met the latter, who informed him he could not see the children, and warned him to keep off the premises of the deceased. On this visit, Argabright was permitted to see the baby alone, but not the older child. On February 7, 1894, the accused made a second trip by rail to Nemaha county, riding out from Howe with a Mr. Dressler. On the way they met the deceased, who declined to speak to the defendant. The latter, on February 8th, went to the home of Mrs. Copeland, a sister of his wife, and sought to arrange for seeing his children, but was unsuccessful; and the forenoon of the next day he, a second time, visited Mrs. Copeland, for the same purpose, and the defendant's father also went to the residence of the deceased, to obtain permission for the accused to see his children, but Mr. Smelser refused to make such arrangements, and the children were not seen. That night an entertainment was given at the Champion school house, which was attended by the deceased and his wife, Mrs. Argabright, the wife of the accused, and their two children. There were also present on that occasion the defendant and a number of his relatives. The defendant remained in the school house for some time after the entertainment closed, and so stationed himself that the Smelser family and Mrs. Argabright and the children could not leave the building without passing him. As the deceased and Mrs. Argabright were leaving the school house, the accused intercepted them, and attempted to see his boy, which deceased informed him he could not do. Thereupon the defendant drew his revolver, and shot William Smelser, causing his instant death.

The killing is admitted, but it is asserted that there is no evidence to establish premeditation, deliberation, and malice. A careful perusal of the bill of exceptions convinces us that this contention is without foundation. It was established that defendant, a short time before the tragedy, purchased the revolver with which the fatal shot was fired, also bought a long-caped mackintosh, under which the revolver was concealed the night of the tragedy; that, before leaving South Omaha, he was advised by a friend not to take the firearm with him on his trip to Nemaha county, else he might get into trouble; that the defendant related his family difficulties to W. H. Beckett, and in that conversation, with reference to his children and his father-in-law, stated to Beckett “that he would have his children or kill the old son of a bitch”; that just before the defendant entered the train at South Omaha, on February 7th, he showed his revolver to James Emerick, and stated to the...