Egbert v. State

• Decision Date: 29 September 1925
• Docket Number: 24437
• Citation: 205 N.W. 252,113 Neb. 790
• Parties: CHARLES L. EGBERT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

205 N.W. 252

113 Neb. 790

CHARLES L. EGBERT v. STATE OF NEBRASKA

No. 24437

Supreme Court of Nebraska

September 29, 1925

ERROR to the district court for Adams county: LEWIS H. BLACKLEDGE JUDGE. Affirmed.

AFFIRMED.

Stiner & Boslaugh, Charles E. Bruckman and Edmund P. Nuss, for plaintiff in error.

O. S Spillman, Attorney General, and Lloyd Dort, contra.

Heard before MORRISSEY, C. J., ROSE, DAY, GOOD and THOMPSON, JJ.

OPINION

DAY, J.

This is the second appearance of this case in this court. Upon the first trial Charles L. Egbert, the defendant, was convicted of murder in the second degree and sentenced to serve a term of fifteen years in the penitentiary. That judgment was reversed by this court because of an erroneous instruction and the case was remanded for further proceedings. Egbert v. State, 112 Neb. 129, 198 N.W. 1014. Upon the second trial the defendant was found guilty of manslaughter and sentenced to the penitentiary for a period of ten years. He has brought the record of his conviction to this court for review.

It is first urged by defendant that the verdict and judgment are not supported by the evidence. The record shows that for some time prior to February 21, 1923, the date of the homicide, the defendant had been a practicing physician and surgeon in the city of Hastings where he resided. His family consisted of himself, his wife, his daughter, Mae Gordon, and her husband, Charles R. Gordon, the victim of the homicide, and Mary Mitchell, a sister of defendant's wife. The home of the defendant had been the home of the others. There is evidence which seems to indicate that the relationship of the parties was pleasant. On February 12, 1923, Mary Mitchell was taken to a hospital and operated upon by the defendant for appendicitis. Defendant was absent from his home on professional business during the day of February 13, 1923, and upon his return in the evening found that his daughter and her husband had left the house. Defendant testified that when he returned: "Mrs. Egbert was worrying and almost in a physical collapse, and said that the children had left." He located his daughter and her husband next day at a hotel in Hastings, and visited them almost daily. On February 17 the defendant's wife was taken to the hospital and, from that time to the date of the homicide, the defendant lived alone in the house.

It further appears that, on the evening of February 20, the defendant called upon his wife and sister-in-law at the hospital and also upon his daughter and her husband at the hotel. Later he attended a professional call and returned to his home at about midnight. In making professional calls at night it was the defendant's custom to carry a revolver. Upon his return home he laid the revolver upon a table in the dining-room and retired to a bedroom immediately adjoining. While defendant was alone in the house at about 10 o'clock in the forenoon of February 21, 1923, his daughter and her husband entered the front door by means of a pass-key. The daughter was called as a witness for the state. She testified, in substance, that upon entering the house her husband suggested that she call "Dad;" that she thereupon called her father, at the same time removing her hat and cloak; that as she stepped into the dining-room the defendant came out of the kitchen wearing a bath-robe; that as he approached her he said, "Hello, honey, is that you?" and that she replied, "Yes;" that as he came toward her and passed the dining-room table he picked up the revolver with his left hand; that he put his right arm around her shoulder, still holding the revolver in his left hand; that at this time Roy was just inside the front door; that her father asked her, "Are you alone?" and that she replied, "No, Roy is with me;" that defendant then asked her what she wanted, and she answered that she had come for some clothes; that thereupon defendant said, "'It's all right for you, but don't let Roy come in and get the clothes,' or something like that;" that nothing further was said; that, while they were standing in this position, her husband rushed in and grabbed hold of defendant's hands; they struggled, and "both tried to get the gun away from each other;" that Roy had hold of her father's hand which held the gun; that no words were spoken; that the gun went off twice, and Roy fell. She was asked the direct question, "Do you know who shot your husband?" and she answered, "Nobody shot him. I think it was an accident."

It further appears that after the shooting the defendant rushed out of the house onto the front porch. He was in a high state of excitement. One witness testified that he was screaming: "Mr. Yocum Mr. Yocum God help me, I didn't mean to do it, Mr. Yocum." Other witnesses testified that he kept repeating: "My God, I didn't mean to do it. "

Dr. Beghtol, another witness for the state, testified in substance that he received a telephone call from the defendant; that the defendant said: "Doctor, come up to Dr. Egbert's residence as quick as you can. Something terrible has happened here. Bring Stiner and the police and the sheriff;" that as he approached the house he saw the defendant on the porch; that he did not seem to have himself under control; that he was speaking in loud lamentations; that, among other things, he said, "God knows I didn't intend to do it;" that the witness took hold of the defendant and assisted him into the house; that as they were going toward the bed-room defendant sank to the floor; that the witness asked defendant, "What's happened?" and that defendant replied: "'They came in the house and I told Mae that she could come in but he couldn't, and he came toward me and I fired,' or 'I shot,' I don't know which he said;" that defendant then asked the witness, "Is he dead?" and looked over toward the body; that the witness then examined the body and found it to be the body of Roy Gordon, the defendant's son-in-law, and that he was dead.

Another witness testified that the defendant kept repeating, "My God, I didn't mean to do it," and then, without seeming to address any one in particular, said, "He struck my wife last week, and no man can strike my wife," and that thereupon Mae Gordon said: "It's a lie. Roy never touched mother. I struck her myself." The defendant and his daughter deny that they made these statements.

Another witness testified that the evening before the tragedy he had a conversation with the defendant; that the defendant seemed to implicate Gordon with having some little trouble with Mrs. Egbert; that the defendant stated that his wife and Mary Mitchell were in the hospital, and that his only child was held a prisoner at the Clarke hotel.

The autopsy revealed that the bullet entered the body just below the left nipple, passing through the heart, and lodged a little to the right of the spine and below the point of entrance; and that the gun-shot wound was the cause of Gordon's death.

The gun in question is what is known to the trade as a 45 Colt automatic loading pistol. At the time the defendant picked the pistol up from the table it was loaded, the trigger was cocked, and the safety catch was on. The testimony discloses that this is a proper and safe way to leave this kind of a pistol when it is loaded and not in use. In this condition the process of discharging the pistol is, first, the releasing of the safety catch, which is on the left-hand side of the barrel near the handle, and which is usually released by a slight downward pressure with the right thumb when the pistol is held in the right hand; second, a pressure with the hand against the grip safety, which is located in the back of the handle; and, third, while the grip safety is pressed in, the pulling of the trigger. When the pistol is being fired in this manner it will continue to shoot unless the pressure is released from either or both the trigger or the grip safety.

It is urged by defendant's counsel that the declarations made by the defendant were not competent evidence as tending to prove the corpus delicti, and that, without the declarations, evidence is wholly wanting that a crime had been committed. The rule is well established that one cannot be convicted of a felony upon his own unsupported extra-judicial confession or admission that he has committed a crime. But, while a voluntary confession is insufficient when standing alone to prove that a crime has been committed, it is competent evidence, and may with slight corroborating circumstances be sufficient to warrant a conviction. Sullivan v. State, 58 Neb. 796, 79 N.W. 721.

In the case just cited it was also held: "Circumstances capable of an innocent construction may be interpreted in the light of the defendant's confession, and the fact under investigation be thus given a criminal aspect."

The defendant denied having made some of the declarations attributed to him by the witnesses for the state. As to other statements, he testified that he had no recollection of having made them, and still others he sought to explain. Considering the entire evidence, together with the circumstances and the inferences which may be properly drawn therefrom, we think the question whether a crime had been committed was for the jury to determine. The credibility of the witnesses, the weight to be given to their testimony, and the proper inferences to be drawn from the evidence were questions within the province of the jury. In our opinion the evidence was sufficient to justify the court in submitting the case to the jury. From this it follows that the court did not err in refusing to direct a verdict of not guilty.

It is next urged that the court erred in permitting certain...