Blazka v. State
| Decision Date | 14 July 1920 |
| Docket Number | 21400 |
| Citation | 178 N.W. 832,105 Neb. 13 |
| Parties | JOSEF BLAZKA v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cherry county: WILLIAM H. WESTOVER JUDGE. Affirmed.
AFFIRMED.
Orville L. Jones and John T. Heffron, for plaintiff in error.
Clarence A. Davis, Attorney General, and John B. Barnes, contra.
Josef Blazka, hereinafter designated the defendant, was convicted of murder in the second degree, in the district court for Cherry county, and sentenced to life imprisonment. He prosecutes error to this court, relying upon a number of assignments.
After the verdict and before sentence the defendant filed a motion in arrest of judgment, challenging the sufficiency of the information. This motion was overruled, and the ruling thereon is now assigned as error. The precise point raised by the motion and argued in the brief is that the information fails to charge that Franciska Blazka, the victim, hereinafter designated the decedent, died of the mortal wounds inflicted upon her. It is manifest that, if the information is subject to the criticism directed against it, it is fatally defective. One of the essential averments in an information for murder is a charge that the victim died of the wounds inflicted. The question involves an examination of the information. In the descriptive part of the information, it charges in apt and appropriate language, and in the usual form of informations for homicide, the venue, the date, March 5, 1919, the assault upon the decedent with deliberate and premeditated malice with the intent to kill and murder, the character of the weapon used, and the infliction upon the body of the decedent of "certain mortal wounds," which are specifically described, following which is the averment: "And did then and there so injure the said Franciska Blazka that she then and there became sick, sore and wounded and confined to her bed where she languished, and so languishing until the 11th day of March, 1919, did die, in said county and state."
As we view it, the whole question turns upon the meaning to be given to the word "so" as used in the latter part of the portion of the information above quoted. The word "so" is of very common use in good English, and has a wide and varied meaning, and the context has much to do with the thought conveyed by its use. The Century dictionary gives various meanings to the word "so", among them: "By this or that means; " "by virtue or because of this or that;" "for that reason;" "in such a way as aforesaid." Webster's New International dictionary defines the word "so:" "As has been stated;" "for that reason;" "in such manner;" "often used with pronominal force to avoid repetition." Stripped of unnecessary verbiage, and reduced in part at least to its last analysis, and giving to the word "so" its pronominal meaning to avoid repetition, and transposing the words, the clause quoted would read: "And did then and there so (in the manner and by the means) injure the said Franciska Blazka that she became wounded, and 'so' (by reason of the mortal wounds inflicted as aforesaid) did die, on March 11, 1919, in said county and state." Such a construction does not, as we view it, do violence to the use of English or put a strained construction upon the words used. A charge that a person feloniously and of deliberate and premeditated malice assaulted a woman on a day named, and inflicted upon her mortal wounds, and did then and there so injure her that she languished and so languishing did die, would be understood in common parlance to charge that she died from those mortal wounds. Defendant so understood the charge against him, and was defended with that understanding.
Section 9050, Rev. St. 1913, provides: "No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings be stayed, arrested or in any manner affected, * * * nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." While we do not consider this provision of the statute as obviating the necessity of essential averments in an information, still it may be regarded as legislative authority to place a liberal rather than a technical interpretation upon the meaning of the words used, and especially is that true when by so doing no prejudice results to the defendant in making his defense upon the merits. While it is necessary that an information for murder should aver all of the essential elements of the crime, the law does not require that it should be laid in the best-chosen English, nor in the technical form approved by long-honored custom. It is sufficient if, from a fair and reasonable construction of the charge as a whole, giving to the language employed its usual and well-understood meaning in the light of the context, it appears that the essential averments of the crime are charged. There was a time in the history of criminal jurisprudence when the courts were justified in resorting to absolute exactness in pleading, and to extreme technicality in an effort to protect the individual in his life and liberty. Many of these technical rules grew up in times when what would be now regarded as trivial offenses were punishable with death. In the time of Blackstone 160 offenses were punishable with death. The accused was not permitted to testify in his own behalf; he was not permitted counsel in his defense in court; and many of the charges were prompted by religious or political passion. Happily that time has passed. The reason for the technical rule no longer exists, and the formalities and technical exactions should no longer be required.
It follows, from what has been said, that the information in this case, when construed as a whole, and giving to the language used its usual and well-understood meaning in the light of the context, sufficiently charges that the decedent came to her death by reason of the mortal wounds inflicted upon her. In this case there can be no possible doubt that defendant understood that he was charged with the murder of his wife, the decedent. Neither is there basis to believe that the so-called defects tended "to the prejudice of the substantial rights of the defendant upon the merits." In this discussion we have not overlooked Hase v. State, 74 Neb. 493, 105 N.W. 253, and cases cited therein. We do not consider the principle herein announced to run counter to that case.
After laying a sufficient foundation, the state, over objection of the defendant, was permitted to offer in evidence certain photographs of the body of the decedent showing numerous wounds of more or less severity. The photographs of the mangled corpse presented a gruesome spectacle, and it is urged that their introduction in evidence tended to arouse a feeling of prejudice, in the minds of...
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