Boyer v. State
| Decision Date | 07 May 1909 |
| Docket Number | 15,996 |
| Citation | 121 N.W. 445,84 Neb. 407 |
| Parties | GEORGE C. BOYER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cheyenne county: HANSON M. GRIMES JUDGE. Affirmed.
AFFIRMED.
W. P Miles, Wright & Wright and J. L. McIntosh, for plaintiff in error.
William T. Thompson, Attorney General, and George W. Ayres, contra.
Plaintiff in error was sentenced to imprisonment in the penitentiary for a term of three years for the crime of manslaughter, and appeals.
1. It is argued that the evidence does not sustain the verdict because the state did not prove beyond a reasonable doubt that the deceased died as a direct result of his encounter with defendant. Defendant's farm was separated from the farm of the deceased, Mr. Perlick, by a section line and public highway. It is admitted that the parties engaged in an altercation over certain posts which defendant and his son who was 17 years of age, were setting, possibly, in said highway. The only eyewitnesses who testified to the tragedy were the accused and his son, and they agree that Perlick started the quarrel, and finally threatened to shoot defendant, whereupon the latter struck Perlick over the head with a piece of two by four, four feet in length, which defendant had been using to tamp the dirt around a post. Perlick became unconscious, and so remained until he died two days thereafter. Dr. Emmerson assisted in an operation performed on the skull of the deceased, and later participated in the autopsy, and testified that in his opinion a certain fracture of the skull and rupture of an artery of the deceased were caused by the fall upon the ground, and not as a direct result of the blow inflicted by defendant. The distinction made by the witness is immaterial. In either case the blow was the proximate cause of the injury and of Mr. Perlick's death.
2. The information charged murder in the second degree, and the court gave an instruction which purported to be a copy of section 5 of the criminal code, which defines manslaughter, but omitted therefrom the adverb "unlawfully" next preceding the word "kill," and this evident inadvertence presents the most serious question for our consideration. It is argued that the jurors were thereby given to understand, that, if Perlick was killed by defendant, they should convict the latter, although he acted in self-defense. If the other instructions of the court indicated that such a theory was presented to the jurors, we would not hesitate to reverse the case, but such is not the fact. In the seventh instruction the jurors were informed that, to convict defendant of manslaughter, the state must prove beyond a reasonable doubt "that the defendant unlawfully killed the said Perlick without malice, either upon a sudden quarrel, or unintentionally, while he was in the commission of some unlawful act," and that, if the state failed to prove all of said allegations beyond a reasonable doubt, the defendant should be acquitted. In the tenth instruction the court said that, if the jurors believed from the evidence and beyond all reasonable doubt "that the defendant struck the fatal blow unlawfully, but without malice," etc., they should return a verdict of manslaughter. The court also instructed that the act was lawful if done in self-defense. Thus it will be noticed that, in each instance where the court made a concerte application of the law to the facts in the case, the jurors were informed that they could not convict unless the slaying was unlawful. We do not think it possible that the jury could have been misled upon a consideration of the entire charge of the court, nor that, as thus considered, the record presents the prejudicial error urged by counsel for the defense. Satterwhite v. State, 82 Ark. 64, 100 S.W. 70; St. Louis v. State, 8 Neb. 405; Debney v. State, 45 Neb. 856, 64 N.W. 446; Harper v. State, 83 Miss. 402, 35 So. 572.
Counsel cite many authorities holding that the omission of the word "unlawfully" from an indictment renders the document defective, but in the instant case defendant was charged with unlawfully causing Perlick's death. Several decisions of this court are also cited. In Thompson v. People, 4 Neb. 524, the court in defining larceny omitted the element of felonious intent. It does not appear that the charge of the court taken together correctly stated the law, and the reversal was proper. In Ballard v. State, 19 Neb. 609, 28 N.W. 271, the court, in applying the law to the case before the jurors incorrectly informed them that, if they were "satisfied from the evidence that the defendant was at the time of the killing insane, aside from being under the influence of liquor," they should acquit. There was some evidence to indicate that the defendant was insane, and it was properly held, with such evidence in the record, that the state was compelled to prove beyond all reasonable doubt the prisoner's sanity, and the instruction was erroneous. In Beck v. State, 51 Neb. 106, 70 N.W. 498, the court had erroneously instructed the jury that the burden of proving an alibi was upon the defense, and it was held that this improper application of the law to the case on trial was not cured by another instruction that, if the evidence concerning an alibi created a reasonable doubt in the jurors' minds, they should acquit. In Henry v. State, 51 Neb. 149, 70 N.W. 924, the instructions placed the burden on defendant of proving an alibi, and also that the alibi to avail must have been such that defendant could not possibly have committed the crime, and were held erroneous, although other...
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