Casey v. State
| Decision Date | 22 September 1886 |
| Citation | 20 Neb. 138,29 N.W. 264 |
| Parties | CASEY v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Gage county.W. H. Ashby and Pemberton & Bush, for plaintiff in error.
When distinct offenses are charged in separate counts of an indictment, the jury must either return a general verdict, or else respond to each charge in their finding; especially where the offenses charged are made separate and distinct by statute, and subject to different degrees of punishment. Hurley v. State, 6 Ohio, 404;Wilson v. State, 20 Ohio, 26;Buck v. State, 1 Ohio St. 61;Riflemaker v. State, 25 Ohio St. 395;State v. Behimer, 20 Ohio St. 572;State v. Sutton, 4 Gill, 494;State v. Commissioners, etc., 3 Hill, (S. C.) 239; Marshall v. Com., 5 Grat. 663;Com. v. Hatton, 3 Grat. 623;State v. Redman, 17 Iowa, 329;State v. Arthur, 21 Iowa, 322;Ray v. State, 1 G. Greene, 316;Webber v. State, 10 Mo. 4; Grah. & W. New Trials, §§ 140, 1390; Williams v. State, 6 Neb. 334.
Shooting with intent to kill can only be predicated on a shooting, the intent of which failed. Foster v. People, 50 N. Y. 598;People v. Rector, 19 Wend. 608;State v. Hammond, 35 Wis. 315, 320;Pliemling v. State, 46 Wis. 522, 523; S. C. 1 N. W. Rep. 278;Smith v. State, 2 Ohio St. 513.
Declarations or acts succeeding closely upon the transaction, and growing directly out of it, are admissible as part of the res gestœ. Whart. Crim. Ev. § 262; 1 Greenl. Ev. § 108; State v. Tweedy, 11 Iowa, 350;State v. Montgomery, 8 Kan. 351;Allen v. Duncan, 11 Pick. 309, 310;Mitchum v. State, 11 Ga. 615;Handy v. Johnson, 5 Md. 450.
Wm. Leese, Atty. Gen., for the State.
Where an indictment contains two or more counts, and the defendant is found guilty on one count, and the verdict contains no finding as to the other counts, this silence of the verdict is equivalent to an express acquittal of the charge in the other two counts. Beaty v. State, 82 Ind. 228;State v. Hays, 78 Mo. 600;Stuart's Case, 28 Grat. 950;State v. Whitton, 68 Mo. 91.
The grand jury of Gage county found an indictment against the plaintiff, in the first count of which he is charged with manslaughter; in the second, with stabbing one W. A. McElhaney with intent to kill and murder; and in the third, with stabbing said McElhaney with intent to wound. On the trial of the cause a verdict was returned as follows: “We, the jury in this case, being duly impaneled and sworn, do find and say that the defendant is guilty as charged in the third count of the indictment.” The plaintiff was thereupon sentenced to imprisonment in the penitentiary for 13 years. A large number of errors are assigned, among which it is claimed that the verdict is not sustained by the evidence, that there is newly-discovered evidence, and that the verdict does not pass upon the first and second counts of the indictment, etc. Those deemed important will be considered in their order.
1. That the verdict is not sustained by the evidence. The testimony, as set forth in the abstract, is as follows:
Dr. Charles Gafford testified, and described the wounds; and in answer to the seventh interrogatory says that the wound in the breast is the only one that is fatal. The breast was full of blood, and, in turning the body over, the blood gushed out of that wound. There was some blood on the clothing. This wound, as all the rest, ranged from the right side towards the left. The blows making the wounds were all directed from right to left. Dr. Given testified to the same effect; adding that McElhaney's clothes were saturated with blood.
“On the night of November 15, 1884, saw McElhaney and the defendant, Casey, at the opera-house saloon in Wymore, Gage county, Nebraska. McElhaney and defendant were standing at the bar. I heard Mac tell Casey they had buried the hatchet the third time, and he wanted him to leave it buried. They took a drink together. Ten or fifteen minutes after this, Casey went up to Mac, and began to talk about trouble they had had prior, had some words, and then went up and took another drink. Mac told Casey that the hatchet was buried, and if he brought it up again he would paralyze him. They came together again. Mac took hold of Casey, and pushed him back. About this time the saloon keeper told Casey he must go out, which he did. McElhaney followed Casey out. They got hold of one another almost as soon as they got out. Mac got Casey by the breast, and threatened to paralyze him. The night watchman came up. Mac took hold of him with one hand, and Casey with the other, and bumped them together. I asked the watchman to let Mac alone, and not attempt to make any arrest. He let go and stepped back, and Mac threw Casey down. This was south of the saloon door. Mr. Linton was there, and we both insisted on Mac letting Casey up. He got up and lifted Casey to his feet, and let go of him. They were apart not over a minute, until Casey walked up to him again. Mac again threw him down. This was north of the saloon door, and over a grating in the sidewalk. One of Casey's legs went through the grating. Linton and I told Mac that Casey's leg was in a hole, and liable to be broken. We tried to get Casey's leg out. Mac raised up as though he was getting up. He had his hand on Casey's breast. He had been sitting on him, but got up partly; then dropped back, and struck Casey on the nose; then changed hands and struck him again. Casey was lying on his back. When Mac was striking Casey, John Bagley came up, and said it was a damned shame to see an old man pounded up that way. Mac rose off from Casey, and says, ‘What is that?’ and made a spring for Bagley. Mac and Bagley both went around the corner of the saloon. The next I saw of Mac he came from the north side of the building; was out about ten feet from the building. He walked up very slowly to a point about north-east of the building, and was standing there when Casey came up from the south past me, and walked up to him, throwing his arm around his neck, and got him by the collar, and commenced striking. Mac backed off, and, as he backed off, he doubled up. Mac said, ‘He is cutting me to pieces with a knife.’ [[[Witness draws plats of saloon and ground, which are marked ‘State's Exhibit A.’]
Cross-examination. Casey never offered to strike Mac. He wanted to talk. I told Bryant he had better not try to arrest Mac. I thought he would not let him. When Mac was on Casey he sat straddle of him on his knees. When Mac and Casey met the last time, Casey struck underhanded blows. When Mac had Casey down, he told him that he could paralyze him. Casey said he knew he could.”
W. A. Linton testified:
“After Mac and Casey got out of the saloon, Mac got him down twice. Mac jumped off of Casey, and started round the corner after Bagley. They got into a scuffle around there. I went around. It was dark. Some one said, The policeman separated them. The scuffle around the corner lasted from one to three minutes.
Cross-examination. Afterwards I found blood on the sidewalk around the corner where the scuffle was. I think there was three in the fight around the corner, and I found the pool of blood right where the scuffle took place. I don't think Casey was in the row. When they met after the row around the corner, Mac did not do much of anything. He did not seem to be Mac. He was a good man, and if he was himself he would not stand and let somebody strike him. When he had Casey down, he struck him several times before he went around the corner. He handled both Bryant and Casey easily.”
H. A. Bryant testified:
“Live at Wymore, Gage county; was there on the night of November 15, 1884, and saw affray between Mac and Casey. Casey says, ‘Don't want any trouble with you.’ Mac says, ‘Shut up, then, God damn you, or I will paralyze you.’ Casey says, ‘I am an old man, and don't want to fight with you.’ Mac says, ‘Well, shut up, then, God damn you, or I will paralyze you.’ He says, ‘Well, Mac, let's quit; let's go in and have a drink.’ Mac took both hands, and pushed Casey against the window. Casey says, ‘Mac, I don't want to fight you; you are a better man than I am.’ He says, ‘Shut up, then, God damn you, or I will paralyze you.’ He says, ‘You are a better man than I am.’ At that he fetched him a swing, and as Casey came around he stepped on that grating lengthwise, and it broke and let him in. Mac struck him on his forehead, and Casey had his left hand to ward off the blow, with his right hand by his side. Mac had Casey with his left hand in his breast or coat, and Casey straightened his arm by his side. Mac said, He let go quickly with his left hand, and took hold of Casey's hand, and fetched it up across his stomach. Then he struck him two, three, or four times in the nose,--fearful blows. He had the leverage of his arm, and at the same time a voice came from the right, saying, ‘It was a damned shame.’ Mac jumped up, left Casey, and started for the man on the north. The first that transpired there I did not see. The next I saw was around the corner. Some one said, ‘Take him off.’ Mac said, ‘No, let him alone; I will take care of him.’ Foley came along, and says, ‘Quit that rumpus.’ The crowd scattered. Mac got on his feet a few feet in front of me, while Casey was standing within three feet of me on the north. Mac came directly towards Casey, and, as they came up within a few feet of each other, Mac first straightened up and raised as he run towards Casey, and Casey struck with his right hand. The first blow he struck, Mac says, ‘Take him off; he is cutting me to pieces.’ They both fell off the sidewalk; one went one way and the other the other. Casey, I think, struck him four or five times, and the last time higher than at any other time. As he struck the blow, Mac dropped lower. He struck Mac first, I think, in the groin or abdomen. The others were higher up. The last blow, I...
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