Davis v. State
| Decision Date | 21 October 1927 |
| Docket Number | No. 25700.,25700. |
| Parties | DAVIS v. STATE. |
| Court | Nebraska Supreme Court |
DAVIS
v.
STATE.
No. 25700.
Supreme Court of Nebraska.
Oct. 21, 1927.
An information for murder by administering poison which charges that defendant “did then and there unlawfully, feloniously, willfully and purposely, and of his deliberate and premeditated malice, make an assault in and upon one Blanche A. Davis, with the intent of him the said Bert M. Davis unlawfully, feloniously, purposely and of his deliberate and premeditated malice to poison, kill and murder the said Blanche A. Davis,” followed by appropriate allegations of the administration of poison and
[215 N.W. 786]
her death as a result thereof, is sufficient to charge that the poison was administered with intent to take the life of Blanche A. Davis.
On the trial of one charged with murder by administering strychnine poison, where, after the body of the victim has been embalmed, competent physicians and chemists perform an autopsy and make a chemical analysis of the organs of the body of the deceased, and where the statutes of the state make it unlawful to embalm a dead body with embalming fluid containing strychnine or any of its compounds, and where it is shown that strychnine would serve no useful purpose in an embalming fluid, it is proper to permit such physicians and chemists to testify to the result of their examination; that they found strychnine in the body in sufficient quantities to produce death; that they found no indication that the victim died of any disease; and that in their opinion she died as a result of strychnine poisoning, without proving that the fluid used in embalming the body did not contain strychnine.
Evidence examined and discussed in the opinion held sufficient to support a verdict of guilty of murder in the first degree.
In a prosecution for murder in the first degree committed by administering poison, the court is not required to instruct the jury as to the law applicable to manslaughter or murder in the second degree, where the evidence clearly establishes that the defendant is either guilty of the crime charged or entirely innocent.
A litigant will not be permitted to take advantage of an error which he has invited the court to commit.
On the trial of one charged with murder in the first degree by administering poison, it is not the duty of the court to instruct the jury as to the law with reference to the lesser and included offense of attempting to take life by the administering of poison, where there is no evidence in the record which would justify the rendering of a verdict of guilty of the lesser offense.
Error to District Court, Red Willow County; Eldred, Judge.
Bert M. Davis was convicted of first degree murder, and he brings error. Affirmed.
Bernard McNeny, of Red Cloud, John F. Fults, of Beaver City, Frank M. Colfer, of McCook, and Edward J. Lambe, of Beaver City, for plaintiff in error.
O. S. Spillman, Atty. Gen., and Geo. W. Ayres, of Lincoln, for the State.
Heard before GOSS, C. J., and ROSE, DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.
GOOD, J.
Bert M. Davis (hereinafter called defendant) was charged with administering to his wife, Blanche A. Davis, with felonious intent, strychnine poison and thereby causing her death, for which he was put on trial, convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for the term of his natural life. To review the record of his conviction, he prosecutes error to this court.
The principal errors relied upon for a reversal are: That the information is insufficient to charge defendant with murder in the first degree; error in the admission of evidence; error in the failure of the court to instruct on all the issues; errors in giving instructions to the jury; and that the evidence is insufficient to sustain the verdict.
Counsel for defendant contend that the information is insufficient to charge murder in the first degree, because, as contended, it fails to directly charge that poison was administered with the intent to take the life of Blanche A. Davis.
It will be conceded that there may be instances where one may administer poison to another which causes the death of such person, where the crime of murder in the first degree would not be committed. For instance, if a physician should prescribe and administer a poisonous medicine, with proper motives, but, through mistake, should give an over or fatal dose, which would cause the death of his patient, he would not be thereby guilty of first degree murder. Whether an information for murder in the first degree by the administration of poison is rendered fatally defective by the omission to charge therein that the defendant administered the poison with intent to take the life of the person to whom it was administered, we find it unnecessary to determine. Conceding, for the sake of argument only, that such an allegation is necessary, we think the information in the instant case is not vulnerable to the objection urged.
[215 N.W. 787]
The information in the instant case charges that:
“Bert M. Davis, then and there being, did then and there unlawfully, feloniously, willfully and purposely, and of his deliberate and...
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