Davis v. State

• Decision Date: 21 April 1897
• Parties: DAVIS v. STATE.
• Court: Nebraska Supreme Court

51 Neb. 301

70 N.W. 984

DAVIS

v.STATE.

Supreme Court of Nebraska.

April 21, 1897.

Syllabus by the Court.

1. Malice is an essential element in the crime of murder, both at common law and under our statute.

2. “Malice,” in common acceptance, means ill will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. Housh v. State, 61 N. W. 571, 43 Neb. 163, followed.

3. The plaintiff in error was indicted for the murder of one Hambell a passenger on a railway train, by displacing the fixtures of the railway track, thereby causing the wreck of the train and the instant killing of Hambell. Held: (1) Whether the prisoner, in displacing the fixtures of the railway track, acted maliciously, was a question of fact for the jury, to be determined from all the circumstances and facts in evidence in the case; (2) that the prisoner's statements as to the motives which induced him to displace the fixtures of the railway track, while competent evidence, were not conclusive in his favor, that he did not act maliciously; (3) that, in order for the killing of Hambell to be murder in the second degree it was not essential that the evidence should show that the prisoner was possessed of a specific intent to either kill or injure Hambell or any other person upon the train.

4. When the fact of unlawful killing is proved, and no evidence tends to show express malice, on the one hand, or any justification, mitigation, or excuse, on the other, the law implies malice, and the offense is murder in the second degree.

5. The indictment against the prisoner was filed at the September, 1894, term of the court. There was a February, 1895, term, a May, 1895, term, and a September, 1895, term, at which latter term the prisoner was tried and convicted. He was put on trial at the February, 1895, term, and the jury, after hearing the evidence, failed to agree upon a verdict, and were discharged. Held, construing sections 390 and 391 of the Criminal Code, that the prisoner was not entitled to be discharged because not brought to trial either before the end of the second or the third term of court in which his case was pending, held after the indictment against him was found.

6. By the constitution of the state the legislature is invested with plenary legislative power, and the defining of crimes and prescribing punishment therefor is a legislative function.

7. Every legislative act comes before this court surrounded with the presumption of constitutionality, and this presumption continues until the act under review clearly appears to contravene some provision of the constitution.

8. Section 93 of the Criminal Code does not violate any provision of the constitution. Said section is not void for uncertainty because the crimes of murder in the first degree, murder in the second degree, and manslaughter are not defined in the proviso of said section.

9. A criminal statute is not void for uncertainty which prescribes as a punishment for doing a certain act the same punishment which is prescribed for doing another named act, when the same Criminal Code defines the latter act and prescribes its punishment.

10. While it is proper, in a criminal case, in defining a crime in an instruction, to use the language of the statute descriptive of such crime, yet, if the import of the language used in the instruction is the same as the statute, an instruction will not be held erroneous because the language employed by the court is different from the language of the statute. Long v. State, 36 N. W. 310, 23 Neb. 33, followed.

11. The trial court is not obliged to repeat in every instruction the degree of proof required, when the jury has been properly instructed that the state must make out its whole case beyond a reasonable doubt. Carleton v. State, 61 N. W. 699, 43 Neb. 373.

12. An instruction should be examined as a whole. All that the instruction contains should be looked to for the purpose of determining whether the party complaining of it was prejudiced by it. To single out a phrase, a word, or a sentence from an instruction, and to examine such word or phrase separately from the other parts of the instruction, is not a fair method of criticism.

13. In an instruction the trial court used this language: “And if the jury find from the evidence that all the incriminating circumstances upon which the prosecution relies for a conviction will as well apply to some other person or persons as to the defendant, or if such facts and circumstances are reconcilable with any reasonable theory or hypothesis other than the guilt of the defendant, or if such facts and circumstances, together with the direct evidence offered in this case, do not satisfy the minds of the jury, beyond any reasonable doubt, of the guilt of the defendant, then you should, by your verdict, acquit him.” Held, applying the rule just above stated, that the use by the court of the expression “incriminating circumstances,” if error, was without prejudice to the prisoner. Metz v. State, 65 N. W. 190, 46 Neb. 547, distinguished.

14. In a county of 70,000 inhabitants or more, where there is pending for trial in the district court a felony case, the judge of said court, if satisfied that a jury cannot be obtained from the regular panel to try such case, may direct the drawing and summoning of a special panel from which to select a jury to try such cause. Section 668g, Code Civ. Proc.

15. And if, in the selection of a jury, the regular panel be exhausted, and the jury selected be discharged before reaching a verdict, the judge of the district court may direct the drawing and summoning of a second special panel from which to select a jury to try said case.

16. And, in selecting a jury from such second special panel, the accused, unless he demands that the exhausted regular panel shall be recalled and re–examined, cannot be heard to complain that the court erred in not causing that to be done.

17. The wreck which it was alleged the prisoner caused by displacing the fixtures of the railway track occurred on Thursday. The evidence against him was largely circumstantial. Held competent for the state to show that the prisoner was possessed of a superstitious belief that Thursday was a lucky day for him; that anything be attempted upon that day would succeed,––as this evidence tended to identify the prisoner as the man who displaced the fixtures of the railway track.

18. A litigant has the right to cross–examine a witness produced against him, to show the interest, bias, or prejudice of such witness, but the extent to which such an examination may be carried is a matter resting very largely in the sound discretion of the trial court. Consaul v. Sheldon, 52 N. W: 1104, 35 Neb. 247, followed.

19. A case will not be reversed because of the limitation placed by the court upon the cross–examination of a witness as to his interest or bias, unless it appears from the record that the party against whom the witness was called was probably prejudiced by such limitation.

20. It is not error for a trial court, on its own motion, to refuse to permit a witness to answer a question which calls for incompetent, immaterial, or irrelevant evidence.

21. It is not competent to prove the bias or prejudice of one witness by the cross–examination of another witness, without at least first having cross–examined the first witness as to his interest, bias, or prejudice.

22. A litigant who propounds a question to a witness, and obtains from him an answer responsive thereto, cannot complain that the court erred in refusing, on his motion, to expunge such answer from the record.

23. A party is not prejudiced by the refusal of the court to strike out testimony of a witness as to when a certain fact happened because the witness admits that he entered such fact in a book at that time, and testifies from the entry rather than from his recollection, when it appears that the entry was correct, and the party moving to strike out introduced in evidence the entry made in the book by the witness.

24. The order in which a party shall introduce his proof is, to a great extent, discretionary with the trial court; and its action in that respect will not be cause for reversal, when no abuse of discretion is shown. Basye v. State, 63 N. W. 811, 45 Neb. 261, followed.

25. There can never properly be more than one issue before the court in a criminal case at one time, and, so long as the plea of not guilty remains on the record, a plea in bar is improper; and the state is under no necessity of replying or demurring to such plea, and the court, on its own motion, may disregard it. Marshall v. State, 6 Neb. 120;Korth v. State, 65 N. W. 792, 46 Neb. 631.

26. If a prisoner, after a plea of not guilty, tenders a lawful and proper plea in bar, stating facts which have occurred or come to his knowledge since the entry of his plea of not guilty, and which facts, if true, entitle him to discharge, then it is the duty of the court to permit the prisoner to withdraw his plea of not guilty, and file such plea in bar.

27. The prisoner, after a plea of not guilty, and without withdrawing or requesting to withdraw such plea, filed a plea of “former jeopardy,” which was neither signed nor sworn to by the prisoner. Held: (1) That such plea in bar was invalid; (2) that the state was under no obligation to demur or reply to it, and that the court was justified in disregarding it, and, on its own motion, striking it from the files.

28. It seems that a plea of “former jeopardy” should set out the record; that is, the former indictment and acquittal or conviction, and the statements of fact, viz. the identity of the person acquitted or convicted, and the offense of which he was acquitted or convicted.

29. The prisoner was put on trial before a jury, and, after part of the evidence for the state was in, one of the jurymen became sick, was examined by a commission appointed by the court, and found and...