Casey v. State

• Decision Date: 22 September 1886
• Citation: 29 N.W. 264,20 Neb. 138
• Parties: JAMES CASEY, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

29 N.W. 264

20 Neb. 138

JAMES CASEY, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 22, 1886

ERROR to the district court for Gage county. Tried below before BROADY, J.

REVERSED AND REMANDED.

W. H Ashby and Pemberton & Bush, for plaintiff in error.

1. When distinct offenses are charged in seperate 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. 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.

2. 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. Smith v. State, 2 Ohio St. 513.

3. Declarations or acts succeeding closely upon the transaction, and growing directly out of it, are admissible as part of the res gestoe. 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.

William Leese, 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.

OPINION

MAXWELL, CH. J.

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. H. Mc'Elhaney 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 thirteen years.

A large number of errors are assigned, among which it is alleged 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 7th int. says that the wound in the breast is the only one that was 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.

A. D. McCandless testified:--On the night of Nov. 15th, 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 Mc. 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 Mc. and began to talk about trouble they had had prior; had some words and then went up and took a drink. Mc. told Casey the hatchet was buried, and if he brought it up again he would paralyze him. They came together again; Mc. 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. Mc. got Casey by the breast, and threatened to paralyze him. The night-watchman came up. Mc. took hold of him with one hand and Casey with the other and bumped them together. I asked the watchman to let Mc. alone and not attempt to make any arrest. He let go and stepped back, and Mc. threw Casey down. This was south of the saloon door. Mr. Linton was there, and we both insisted on Mc. letting Casey up. He got up, lifted Casey to his feet and let go of him. They were apart not over a minute until Casey walked up to him again. Mc. 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 Mc. that Casey's leg was in a hole and liable to be broken. We tried to get Casey's let out. Mc. 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 in the nose; then changed hands and struck him again. Casey was lying on his back. When Mc. was striking Casey, John Bagley came up and said it was a damned shame to see an old man pounded up that way. Mc. rose off from Casey and says "What is that," and made a spring for Bagley. Mc. and Bagley both went around the corner of the saloon. The next I saw of Mc. 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 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. Mc. backed off, and as he backed off he doubled up. Mc. said, "He is cutting me to pieces with a knife."

CROSS-EXAMINATION.

Casey never offered to strike Mc. He wanted to talk. I told Bryant he had better not try to arrest Mc. I thought he would not let him. When Mc. was on Casey he sat straddle of him on his knees. When Mc. and Casey met the last time, Casey struck underhanded blows. When Mc. had Casey down he told him that he could paralyze him. Casey said he knew he could.

W. A. Linton testified: After Mc. and Casey got out of the saloon Mc. got him down twice. Mc. jumped off of Casey and started around the corner after Bagley. They got into a scuffle around there. I went around. It was dark. Some one said, "Come, old man, I have got him. I have him down; come and give it to him." 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, Mc. did not do much of anything. He did not seem to be Mc. 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 Mc. and Casey. Casey says, "Don't want any trouble with you." Mc. 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." Mc. says, "Well, shut up, then, God damn you, or I will paralyze you." He says, "Well, Mc., let's quit; let's go in and have a drink." Mc. took both hands and pushed Casey against the window. Casey says, "Mc. 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. Mc. struck him in his forehead, and Casey had his left hand to ward off the blow, with his right hand by his side; Mc. had Casey with his left hand in his breast or coat, and Casey straightened his arm by his side; Mc. said, "Oh no, you don't come that, old man;" 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. Mc. 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;" Mc. said, "No, let him alone, I will take care of him." Foley came along and says, "Quit this rumpus." The crowd scattered; Mc. got on his feet a few feet from me, while Casey was standing within three feet of me on the north. Mc. came directly toward Casey, and as they came up within a few feet of each other, Mc. first straightened up and raised as he run toward Casey, and Casey struck with his right hand. The first blow he struck, Mc. says, "Take him off boys, 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...