Gravely v. State

CourtSupreme Court of Nebraska
Writing for the CourtPOST
PartiesGRAVELY v. STATE.
Decision Date16 January 1894

38 Neb. 871
57 N.W. 751

GRAVELY
v.
STATE.

Supreme Court of Nebraska.

Jan. 16, 1894.



Syllabus by the Court.

1. In criminal prosecutions the burden of proof never shifts, but, as to all defenses which the evidence tends to establish, rests upon the state throughout; hence a conviction can be had only when the jury are satisfied from a consideration of all the evidence of the defendant's guilt beyond a reasonable doubt.

2. That rule applies not alone to the case as made by the state, but to any distinct substantive defense which may be interposed by the accused to justify or excuse the act charged.

3. Where, in a prosecution for murder, there is evidence tending to prove that the killing was justifiable on the ground of self-defense, the jury, in order to convict, must be satisfied beyond a reasonable doubt that the killing was not done in self-defense.

4. It is error to instruct that the accused is required to justify the act charged in the indictment on the ground of self-defense by a preponderance of the evidence.


Error to district court, Lancaster county; Tibbets, Judge.

Green S. Gravely was convicted of murder in the second degree, and brings error. Reversed.

[57 N.W. 751]

Wm. B. Price and Cobb & Harvey, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.


POST, J.

This was a prosecution in the district court of Lancaster county on the charge of murder in the first degree. A trial was had at the September, 1892, term, at which the accused was convicted of murder in the second degree, and which he now seeks to reverse by means of a petition in error addressed to this court. The only question which calls for notice is that presented by the following instruction, given by the court on its own motion: “It is incumbent upon the state to show proof beyond any reasonable doubt that on the 28th day of May, 1892, the defendant, Green S. Gravely, fired a pistol shot at Charles Thomas, and said shot took effect upon the person of said Charles Thomas, and from the effects of said shot so fired the said Charles Thomas died; that said act took place in Lancaster county, state of Nebraska; that said act of the defendant was done purposely, with deliberation and premeditation and malice. After the state has established its case as above, it then devolves upon the defendant to justify his act on the ground of self-defense, and this he is required to do only by a preponderance of the evidence.” The particular objection to this instruction is the direction contained in the last sentence thereof, requiring...

To continue reading

Request your trial
19 practice notes
  • Frank v. United States, No. 6065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 7 July 1930
    ...v. State, 171 Ind. 431, 84 N. E. 974; People v. Coughlin, 67 Mich. 466, 35 N. W. 72; Hawthorne v. State, 58 Miss. 778; Gravely v. State, 38 Neb. 871, 57 N. W. 751; State v. McCluer, 5 Nev. 132; Brown v. State, 62 N. J. Law, 666, 42 A. 811; State v. Jones, 71 N. J. Law, 543, 60 A. 396; State......
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • 20 January 1899
    ...which may be interposed by the accused to justify or excuse the act charged as to the case as made by the state. (Gravely v. State, 38 Neb. 871, 57 N.W. 751; 1 Greenleaf on Evidence, sec. 81, notes; 3 Greenleaf on Evidence, sec. 29, and note A; People v. Riordon, 117 N.Y. 71, 22 N.E. 455; P......
  • Torske v. State, No. 28114.
    • United States
    • Supreme Court of Nebraska
    • 29 April 1932
    ...but to any distinct substantive defense which may be interposed by the accused to justify or excuse the act charged. Gravely v. State, 38 Neb. 871, 57 N. W. 751. To meet the burden cast upon the state by the defense of insanity, two physicians were called to testify as experts. The plaintif......
  • State v. Ballou
    • United States
    • Rhode Island Supreme Court
    • 7 July 1898
    ...for defendant: Henson v. State, 112 Ala. 41, 21 South. 79; Casey v. State, 49 Neb. 403, 68 N. W. 643; Granley v. State, 51 Neb. 106, 57 N. W. 751; Ford v. State, 73 Miss. 734, 735, 19 South. 665; Davis v. D. S., 160 U. S. 469, 16 Sup. Ct. 353; Boykin v. People, 22 Colo. 496, 45 Pac. 419; Lo......
  • Request a trial to view additional results
19 cases
  • Frank v. United States, No. 6065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 7 July 1930
    ...v. State, 171 Ind. 431, 84 N. E. 974; People v. Coughlin, 67 Mich. 466, 35 N. W. 72; Hawthorne v. State, 58 Miss. 778; Gravely v. State, 38 Neb. 871, 57 N. W. 751; State v. McCluer, 5 Nev. 132; Brown v. State, 62 N. J. Law, 666, 42 A. 811; State v. Jones, 71 N. J. Law, 543, 60 A. 396; State......
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • 20 January 1899
    ...which may be interposed by the accused to justify or excuse the act charged as to the case as made by the state. (Gravely v. State, 38 Neb. 871, 57 N.W. 751; 1 Greenleaf on Evidence, sec. 81, notes; 3 Greenleaf on Evidence, sec. 29, and note A; People v. Riordon, 117 N.Y. 71, 22 N.E. 455; P......
  • Torske v. State, No. 28114.
    • United States
    • Supreme Court of Nebraska
    • 29 April 1932
    ...but to any distinct substantive defense which may be interposed by the accused to justify or excuse the act charged. Gravely v. State, 38 Neb. 871, 57 N. W. 751. To meet the burden cast upon the state by the defense of insanity, two physicians were called to testify as experts. The plaintif......
  • State v. Ballou
    • United States
    • Rhode Island Supreme Court
    • 7 July 1898
    ...for defendant: Henson v. State, 112 Ala. 41, 21 South. 79; Casey v. State, 49 Neb. 403, 68 N. W. 643; Granley v. State, 51 Neb. 106, 57 N. W. 751; Ford v. State, 73 Miss. 734, 735, 19 South. 665; Davis v. D. S., 160 U. S. 469, 16 Sup. Ct. 353; Boykin v. People, 22 Colo. 496, 45 Pac. 419; Lo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT