Davis v. State

• Decision Date: 20 January 1891
• Parties: DAVIS v. STATE.
• Court: Nebraska Supreme Court

31 Neb. 240

47 N.W. 851

DAVIS

v.STATE.

Supreme Court of Nebraska.

Jan. 20, 1891.

Syllabus by the Court.

1. While a person has the right, when assaulted by another in such a manner as to excite in him a reasonable belief that he is in danger of losing his life or receiving great bodily injury, to resist the attack by using such force as is apparently necessary to defend himself, yet if, after he has secured himself from danger, he takes the life of his assailant in the spirit of revenge, he cannot claim exemption from punishment on the ground of self-defense.

2. A motion for a new trial in a criminal case, to avail the party making, must be filed at the term of court at which the verdict is returned, and, except for newly-discovered evidence, within three days after the verdict was rendered, unless unavoidably prevented.

3. Held, that the verdict is sustained by the evidence, and that the sentence was not excessive.

Error to district court, Richardson county; APPELGET, Judge.E. W. Thomas and C. Gillespie, for plaintiff in error.

The Attorney General, for the State.

NORVAL, J.

The plaintiff in error was indicted in the district court of Richardson county for the murder of James W. Harper. He was tried at the March, 1889, term of said court, a verdict of manslaughter was returned, and he was sentenced to imprisonment in penitentiary for eight years. On December 10, 1888, the date of the tragedy, the defendant and deceased resided in the town of Humbolt, of this state. About 3 o'clock in the afternoon of that day, Harper and Davis had a quarrel in Kohn's saloon. It appears that the deceased had accused Davis of stealing, and the charge had come to the ears of the latter. When they met in the saloon, angry words passed between them. Davis took hold of Harper, and invitedhim to go with him out of the corporation, and they would settle the matter; to which Harper replied: “I will go with you at any time, and fight with you; but, if you go out with me, your folks won't know you afterwards.” Mr. Bullis, the marshal, interfered and stopped the quarrel. Shortly afterwards the deceased borrowed a revolver, stating that he wanted it to kill a dog that had been visiting his meat-house. Davis had been informed that Harper had the weapon. About dark the same day, Davis met Harper at Bacon's livery stable; the latter being somewhat intoxicated. The quarrel was here renewed. Harper called Davis a thief and other hard names. The marshal threatened to arrest Harper, who replied, “Well, go outside of the corporation,” and, addressing the accused, he said, “You darsent go.” Davis answered, “By God, I will go;” and both started south in the direction of their homes, with Davis a step or two in the lead. They had gone but a short distance from the barn when Davis told Harper to come up beside him, or walk on ahead, as he had something in his pocket. Harper replied, with an oath, it was none of his business what he had in his pocket, and for him to walk on ahead. This Davis declined to do, and Harper said, “We'll settle this right now, and you are a damned son of a bitch.” The defendant then caught Harper, and about the same instant the deceased drew his revolver from his pocket. In the struggle that followed both fell, with Harper underneath. Davis wrenched the revolver out of his hands, and hit the deceased two or three times with it, breaking his skull. John Cowman, who witnessed the entire transaction, ran up, and told Davis to stop, and made him give up the revolver. The defendant, after the revolver had been taken away, hit Harper with his fist, and, after Cowman had pulled Davis up, the defendant kicked the deceased. From the effect of the blows Harper died in about ten days or two weeks after receiving the injury. The plea for the defendant was self-defense.

The deceased was over 50 years old, weighing not more than 125 pounds, and physically was not the equal of the defendant. The evidence shows that after the weapon had been taken from the deceased he was in the power of the defendant, and that Davis was not then in any real or apparent danger. The fatal blows were given without any legal excuse or justification therefor. The defendant had the right to employ such reasonable means within his power as were apparently necessary to prevent the deceased from killing him, or inflicting great bodily harm;...