Carleton v. State

• Decision Date: 04 January 1895
• Citation: 43 Neb. 373,61 N.W. 699
• Parties: CARLETON v. STATE.
• Court: Nebraska Supreme Court

43 Neb. 373

61 N.W. 699

CARLETON

v.STATE.

Supreme Court of Nebraska.

Jan. 4, 1895.

Syllabus by the Court.

1. The evidence examined, and held sufficient to sustain a conviction of murder in the first degree.

2. In criminal cases, as in civil, the credibility of witnesses, and the weight to be given their testimony, are matters for the determination of the jury. It is for the jury to determine whether it is convinced beyond a reasonable doubt of the defendant's guilt, not for the reviewing court to say whether it is so convinced. A reviewing court can only inquire whether the evidence was sufficient to warrant the jury in finding the defendant guilty.

3. Where, in a criminal case, the evidence is circumstantial, the circumstances established must, to warrant a conviction, be such as to exclude every reasonable hypothesis except that of the defendant's guilt. But this rule merely requires the exclusion of such hypotheses as are based on circumstances established by the evidence. It does not require the jury to acquit because of evidence which, if believed, would establish facts consistent with innocence, but which evidence the jury are justified in disbelieving.

4. If the evidence offered be legally admissible for any purpose, an objection to such evidence should be overruled. Evidence cannot be excluded because it is not material to every issue in the case.

5. In a prosecution for homicide it is admissible for the defendant, having first established that he was assailed by the deceased, and in apparent danger, to prove that the deceased was a person of ferocity and violent disposition; and this for the purpose of showing either that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree, or that he was in such apparent extremity as to make out a case of self-defense, or that the deceased's purpose in encountering the defendant was deadly.

6. Such proof must be made by evidence of the general reputation of the deceased. It cannot be made by proving either specific acts on his part, or the opinions of witnesses as to his disposition, based on their own observations.

7. Certain rulings of the trial court on the materiality of evidence and the right of cross-examination reviewed, and the rulings sustained.

8. It is the duty of the court to instruct the jury on the law of the case, whether requested so to do or not; and an instruction or instructions which, by the omission of certain elements, have the effect of withdrawing from the consideration of the jury an essential issue or element of the case, is erroneous; but where the jury is instructed generally upon the law, and when the instructions given do not have the effect above stated, then error cannot be predicated upon the failure of the court to charge upon some particular phase of the case unless a proper instruction was requested by the party complaining.

9. A statement made by the court, in ruling upon the evidence, that an instruction of a certain character would be given in relation to such evidence, does not excuse a party from properly requesting such instruction at the proper time.

10. The failure or refusal of the court to instruct the jury must be excepted to in the trial court, in order to be availed of on error.

11. If a killing be in self-defense, it is not malicious; and, if malicious, it cannot be in self-defense. Therefore, where a jury is instructed that a killing in self-defense is excusable, the instruction is not erroneous because it does not say that such killing is excusable, although malicious; the other instructions properly defining malice.

12. An instruction stating that one cannot avail himself of the law of self-defense where, after he has secured himself from danger, he takes the life of his assailant in a spirit of revenge, or for some unlawful purpose, is not erroneous; the rest of the charge plainly stating that the taking of life from motives of self-preservation, based on reasonable grounds of belief, is not in pursuance of an unlawful purpose.

13. Where the circumstances warrant the submission to the jury of the theory of self-defense, it is not error to charge that, if the defendant provoked the difficulty for the purpose of wreaking vengeance on the deceased, he cannot avail himself of the law of self-defense, there being no direct evidence of such an attack, but circumstances being such as to warrant the inference of one.

14. Where a charge distinctly states that to warrant a conviction the state must make out the whole case beyond a reasonable doubt, it is not necessary to repeat in every instruction the degree of proof required.

15. Instructions in a case are to be construed together, and if, when so construed, they state the law applicable to the case without confusion or conflict, a single instruction is not erroneous because in itself incomplete.

16. Where a person has actually formed the purpose maliciously to kill another, and has deliberated and premeditated upon it before committing the offense, this constituted murder in the first degree. The length of time that intervenes between the time such purpose is formed and its execution is not material.

17. It is not error to instruct the jury that it is sufficient to constitute murder in the first degree “if there was such design and determination to kill, distinctly formed in the mind at any moment before or at the time the blow was struck,” where the remainder of the instruction properly defines purpose, deliberation, and premeditation, states that the proposed act must have been deliberated and premeditated upon before it was committed, and it is evident that the language quoted referred to the existence of the purpose, and not the time of its formation.

18. A repetition of a proposition of law in the instructions is not reversible error unless it appears that such repetition might operate to the prejudice of the accused.

19. It is not error to charge the jury that, in weighing the testimony of the defendant, they should fully and fairly consider whether it is true and made in good faith, the terms “true” and “made in good faith” being in such case synonymous, and therefore not implying that the testimony should be rejected, although true, if not made in good faith.

20. The following instruction held not erroneous: “(5) The jury are instructed that a ‘reasonable doubt’ is a term often used, probably well understood, but not easily defined. It is not every possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say and feel that they have an abiding conviction to a moral certainty of the truth of the charge. If, upon the proof, there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal; for it is not sufficient to establish a probability, though a strong one, arising from the doctrine of chances that the facts charged are more likely to be true than the contrary, but the evidence must establish the facts to a reasonable and moral certainty,--a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This is proof beyond a reasonable doubt, because, if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would defeat criminal prosecutions altogether. A reasonable doubt does not consist of possible or conjectural doubts. If, after a careful, impartial, and candid consideration of all the evidence in this case, the jury have an abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge against him, then they are satisfied beyond a reasonable doubt.”

21. A judgment will not be reversed because an instruction was somewhat argumentative in its nature, when the argument consisted simply of stating a reason for a rule of law, there being no comment upon the facts, and no appeal in any manner to the jury.

22. Where a new trial is asked for on the ground of misconduct of parties, jurors, or witnesses, and the evidence is conflicting as to the existence of such misconduct, the finding of the trial court will not be disturbed.

23. A verdict should not be set aside because a juror before the jury was sworn was found with liquor in his possession, it not being established that he was intoxicated, or that, after his acceptance as a juror, he partook thereof.

Error to district court, Dodge county; Marshall, Judge.

Charles C. Carleton was convicted of murder in the first degree, and brings error. Affirmed.

Frick & Dolezal, for plaintiff in error.

C. Hollenbeck and Geo. H. Hastings, Atty. Gen., for the State.

IRVINE, C.

The plaintiff in error was charged with murder, in the district court of Dodge county, found guilty of murder in the first degree, and sentenced to be hanged. This judgment he seeks to reverse by this proceeding. One hundred and fifty errors are assigned, and a review of the case has been necessarily laborious, although we have been aided by able efforts of counsel on each side, and by a transcript of the record which might well serve as a model.

We shall first consider the assignment of error that the evidence was insufficient to sustain the verdict rendered. The serious nature of the case, as well as the fact that a statement of the evidence at this time will assist in understanding the discussion to follow of the specific assignments warrants us in narrating the evidence in some detail, even though such a course necessarily must extend this opinion further than is usually expedient. In 1892, August Gothman, the deceased, was a resident of Shelby county, Iowa. He seems to have been a German...