Clown Horse v. State

• Decision Date: 22 April 1960
• Docket Number: No. 34757,34757
• Citation: 102 N.W.2d 625,170 Neb. 336
• Parties: Amos CLOWN HORSE, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 625

102 N.W.2d 625

170 Neb. 336

Amos CLOWN HORSE, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34757.

Supreme Court of Nebraska.

April 22, 1960.

Syllabus by the Court.

1. A purpose to kill and malice are essential elements of murder in the second degree and in a prosecution therefor each must be established beyond a reasonable doubt.

2. This court may not in a case of the character of the present one resolve conflicts in or weigh the evidence or pass upon the credibility of the witnesses.

3. It is implicit in a verdict of guilty in such a case that the jury decided all controverted questions of fact unfavorably to the accused and this court will not disturb the verdict if based on evidence unless, as a matter of law, it is insufficient to support a finding of guilt beyond a reasonable doubt.

4. In a case of the character of the present one the unlawful killing is the principal fact but the condition of the mind of the accused or the attendant circumstances determine the class of the crime as second-degree murder or as manslaughter.

5. If the evidence in reference thereto is such that various inferences may properly be deduced therefrom as to the degree of the crime, the trial court must submit the different degrees to the jury to determine which inference shall prevail.

6. It is the duty of the district court to instruct the jury on such degree or degrees of homicide as are supported by evidence sufficient to sustain a verdict of guilty.

7. If the fact of the homicide is established but the circumstances of it are not fully shown on the trial so that the jury can judge from the circumstances whether it was intentional, the law presumes legal malice; but if the circumstances of the homicide are all established by the evidence at the trial, then the law creates no presumption of malice but the issue as to it is one of fact to be determined by the jury from all of the circumstances surrounding the homicide.

Donald L. Wood, Willis A. Herman, Mitchell, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., for defendant in error.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The plaintiff in error, herein designated accused, was charged with the crime of murder in the second degree, was convicted of the crime of manslaughter, and was adjudged to be confined in the Nebraska State Penitentiary for a definite term. He prosecutes this error proceeding to review the record of his conviction.

The accused and Sarah Bad Heart, also named Sarah Bad Heart Bull and referred to herein as Sarah, were employed by and worked for a farmer northeast of Minatare and they with the five children of Sarah, the oldest of whom was 10 years and the youngest 6 months, lived in a labor house which was secured by the accused. He was not related to Sarah or any of her children. She and her husband were estranged and at the times important to this case he was confined in jail at Scottsbluff.

The accused and Sarah went to Scottsbluff on July 29, 1959. Accused stopped at a pool hall and Sarah did some shopping after which she went to Earl's Pool Hall, met the accused, and they drank beer. They then repaired to the Daily Double Bar and drank more beer. From there they traveled to Gering, arriving there about noon of that day. They visited the Union Bar in Gering and drank beer. They were joined there by Lila Orr Hamburger, hereafter spoken of as Mrs. Hamburger or the deceased, who brought the beer she was drinking with her and sat down and visited with the accused and Sarah. Mrs. Hamburger consented to take Sarah and the accused in her automobile to the home of the parents of accused on a farm west of Gering but before they started on that trip they secured two six-packs of beer and the three of them drank it while on that trip. They stayed at the farm where the parents of accused lived for quite a while and then returned to Gering and stopped at the Safeway Store where Sarah did some more shopping. Mrs. Hamburger wanted more beer and they went to Terry's in Terrytown between Gering and Scottsbluff and bought two six-packs of beer. It was then probably 3 or 4 o'clock in the afternoon. They then proceeded to the home of Mrs. Hamburger on the southeast corner of L and Twelfth Streets, known as 1115 L Street, in Gering to drink the beer they had recently purchased after which Mrs. Hamburger was going to take accused and Sarah to their home near Minatare. They sat in the home, conversed, and drank beer. Mrs. Hamburger produced a bottle of wine and she and accused drank it. They ate sandwiches prepared by her and thereafter accused wanted Sarah to go home with him because her five children had been left at home alone. She wanted to stay with Mrs. Hamburger who said she would bring Sarah home later in the evening. Accused insisted that Sarah go home with him and she refused. Accused became angry and he slapped Sarah. Mrs. Hamburger swore at accused and told him not to slap Sarah again. Accused took Sarah by both arms in an attempt to have her go home with him to the children who had been alone in the home since before noon. Accused and Sarah were fighting and scuffling in the living room of the Hamburger home. Accused slapped Sarah a second time and thereupon Mrs. Hamburger stabbed accused in the back with a butcher knife. It was then about 8 o'clock in the evening.

The wound inflicted on accused by the stabbing was on the right upper posterior chest, that is, the back of the chest. It was deep enough that it communicated with the chest cavity. The knife struck a rib, traveled obliquely downward between two ribs, entered the chest cavity, and caused lung damage. The wound was probed with a rubber catheter and about 8 inches of it extended into the chest cavity. When a doctor saw accused a brief time later he was suffering severe pain, difficulty in breathing, and shock.

A specimen of blood was secured later that evening from accused and from the body of Mrs. Hamburger. The blood alcohol content from accused was determined to be 0.31 or 310 milligrams percent, and the blood alcohol content of the specimen from the body of Mrs. Hamburger was determined to be 0.15 or 150 milligrams percent. The result of each of these determinations was indicative of alcoholic intoxication. The record is convincing that accused, Mrs. Hamburger, and Sarah were each intoxicated when they went to the Hamburger home and thereafter until the two first named were placed in the hospital and Sarah was confined in jail.

Sarah did not see the knife with which accused was stabbed and she did not know that Mrs. Hamburger had it until after the accused was stabbed in the back by Mrs. Hamburger. She did not know who took the knife out of the body of accused. There is undisputed evidence of two doctors that accused could not have taken it from his body. Soon thereafter accused had the knife in his hand and that is when Sarah first saw it. She grabbed for it, the knife was jerked away, and that is how her left hand was cut. Accused turned his body and she saw blood on his back from the wound caused by the stabbing of him. When accused turned around he slapped or hit Mrs. Hamburger and she fell or sat down in a big chair or on a couch. Sarah heard the accused say he was stabbed or something like that and to call the cops. She ran from the house and down the road until she met an automobile which stopped. The record is not clear what she told the operator of the automobile but it indicates she made it known to him that something serious had happened at the Hamburger home. Sarah came to the automobile of Mrs. Hamburger which was parked in the street in front of the Hamburger house and accused was then standing by it. He was all bloody. She attempted to take hold of him but he did not want to be touched. He told her to get away. He got into the front seat of the automobile and lay on his back. She got in the back seat and tried to talk to him but she could get no response. He gave evidence of suffering pain and appeared to be quite unconscious. She did not go back into the Hamburger house. The sheriff came to the automobile soon afterwards and put a bandage on her bleeding hand. He asked her what had happened and she told him that Mrs. Hamburger stabbed accused and then he stabbed Mrs. Hamburger. When accused was on the sidewalk near the automobile he told Sarah that he stabbed Mrs. Hamburger. There had been no ill feeling, disagreement, or difficulty between either the accused or Sarah and Mrs. Hamburger before the occurrences of the evening of that day which are involved in this case. All of their relations had been cordial and pleasant.

Two police officers came to the Hamburger home soon after Sarah got into the automobile parked in the street. She told the officers that a woman in the house had been stabbed. The officers entered the house and found Mrs. Hamburger on the floor with a butcher knife inserted in her abdomen. The entire blade of the knife except about the last inch thereof next to the handle was buried in her body. The police officers called the sheriff and then they went for a doctor. The doctor was brought to the scene of the tragedy and he with the sheriff entered the house. They found Mrs. Hamburger on the floor with her left arm lying back of her and her legs drawn up. The doctor examined her. She was living but her respirations were very stertorous and she had no pulse or blood pressure. There was a knife in her left upper abdomen and she was covered with blood. The doctor administered an injection of adrenalin, removed the knife from her body, and told the sheriff and police officers to get her to the hospital at once. She was placed in an ambulance and taken to the hospital. She was dead when the ambulance arrived there. There were multiple bruises and minor lacerations about her head and face. They were especially on the right...