Hamblin v. State

• Court: Supreme Court of Nebraska
• Citation: 81 Neb. 148,115 N.W. 850
• Docket Number: No. 15,241.,15,241.
• Parties: HAMBLIN v. STATE.
• Decision Date: 19 March 1908

81 Neb. 148
115 N.W. 850

HAMBLIN
v.
STATE.

No. 15,241.

Supreme Court of Nebraska.

March 19, 1908.

Syllabus by the Court.

In the trial of a person charged with the crime of murder in the first degree, the defense of insanity having been presented by the evidence, held not to be reversible error for the court to instruct the jury, among other things, that when the defendant has introduced evidence as to his mental condition sufficient to raise a doubt as to his sanity, which the law presumes, then it was incumbent upon the state to overcome such doubt, and to establish by evidence, beyond a reasonable doubt, that the defendant was sane at the time of the commission of the acts charged, as the instruction, when considered with others, did not place the burden of proving his insanity upon the accused.

In a case where such facts claimed by the defense rendered the instruction applicable to them, it was not error for the court to instruct the jury that if the accused was, at the time of the alleged criminal act, laboring under an aberration of mind to such a degree that he was unconscious of his acts, so much so that his intellectual powers were obliterated to that extent that he had no will, no purpose, no consciousness of right or wrong, he should be acquitted; the claim and testimony of the accused being that he was unconscious of his act, and had no recollection of the occurrence.

Instruction No. 17, being a copy of instruction No. 10 set out in Carleton v. State, 43 Neb. 410, 61 N. W. 699, is approved when considered in connection with the other instructions given.

Where a mortal wound is unlawfully inflicted by one person upon another under such circumstances that, if death had immediately ensued, it would have been a felonious homicide, the fact that other causes, such as error or accidents in the treatment of the victim, may have contributed to or hastened death, will not relieve the accused from the criminality of his act; the real cause of the death being the felonious assault.

In propounding hypothetical questions to expert witnesses, it is allowable for each party to the controversy to submit such questions upon the theory of the case contended for by the side propounding them. A question is not improper simply because it includes only a part of the facts testified to. If facts are testified to which are not believed to be true, or which are believed to be immaterial to the issue, there is no rule of law requiring that they be included in the question.

Where it is claimed that an attorney is guilty of misconduct in arguing a case to a jury, and it is desired to raise a question on that point for decision in the Supreme Court, it is necessary that objection be made to the trial court at the time and an adverse ruling had thereon and an exception thereto, and that the same be made a part of the record by a proper bill of exceptions.

Affidavits of jurors may not be received for the purpose of impeaching a verdict rendered by them where the facts stated by the affidavits are such as inhere in the verdict, such as that the jury misunderstood or did not rightly comprehend the instructions of the court.

Where other instructions to the trial jury fully covered the law upon every feature of the case, including the law of insanity, reasonable doubt, etc., and an instruction is given covering the physical facts in the case, and stating that, if they are established beyond a reasonable doubt, the defendant would be guilty of murder or manslaughter “according to the evidence as explained in these instructions proves the one or the other,” held not erroneous as withdrawing other questions and defenses from the jury.

The question of the sanity of the accused having depended upon conflicting evidence submitted to the jury, under proper instructions, the verdict of the jury must be taken as decisive of the question, so far as the reversal of the judgment is concerned.

While not always calling for a reversal of a judgment, the incorporation of sayings of law writers, not containing statements of legal principles, into instructions, cannot be approved.

“It is a general rule, applicable in capital as well as in other cases, that a new trial will not be granted on the ground of newly discovered evidence where such evidence would be cumulative merely.” St. Louis v. State, 8 Neb. 405, 1 N. W. 371.

Error to District Court, Hall County; Paul, Judge.

John B. Hamblin was convicted of murder, and brings error. Judgment modified to the extent that sentence was changed from death to imprisonment for life.

[115 N.W. 850]

Leo Cleary, B. H. Paine, and W. H. Thompson, for plaintiff in error.

W. T. Thompson, Grant G. Martin, A. C. Mayer, and W. A. Prince, for defendant in error.

REESE, J.

On the 17th day of January, 1907, an information was filed in the district court of Hall county, accusing plaintiff in error of murder in the first degree by shooting Rachael Engle on the 3d day of August, 1906; the allegations of the information being that the deceased lived until the 14th day of January, 1907, when she died from the effects of the gunshot wound. Upon a plea of not guilty being entered, a trial was had, which

[115 N.W. 851]

resulted in a verdict of guilty of murder in the first degree and the imposition of the death penalty. A motion for a new trial was filed which was overruled, and the sentence fixed by the jury was pronounced by the court. The case is brought to this court for review by proceedings in error.

In so far as the physical facts of the alleged tragedy are concerned, there does not appear much, if any, dispute or conflict. For the purposes of this investigation, it may be stated that plaintiff in error on the 3d day of August, 1906, was an unmarried man of about 33 years of age, and Rachael Engle was a girl, or young woman, of between 15 and 16 years of age, in good health and rather a robust constitution, of medium size and unmarried. She resided with her mother and father, Mrs. and Mr. Kent, whose home was in Grand Island. Plaintiff in error was a laborer, employed by Mr. Kent, and made his home with the family, with whom he had boarded for some 11 months, though not all of that time employed by Mr. Kent. At the time of the alleged assault a street carnival was being carried on in that city. After supper on the evening in question, the family, consisting of Mr. and Mrs. Kent, their daughter, Rachael Engle, their son, George Engle, Charles Smith, Stephen Williams, and plaintiff in error, together with Mr. and Mrs. Greenfield and their daughter, Miss Dunham, who were visiting the Kents for the evening, decided to go upon the streets and witness the carnival. The younger people, consisting of Miss Engle, Miss Dunham, Mr. Engle, Mr. Smith, Mr. Williams, and plaintiff in error, started to walk, while the Kents and Greenfields rode in a spring wagon or carriage. The young people pursued their course toward the central portion of the city. Smith, George and Rachael Engle, and Miss Dunham, becoming somewhat separated from plaintiff in error and Williams, were enjoying themselves by indulging in the innocent frolics of the evening, while plaintiff in error and Williams walked rather to themselves. As they crossed the railroad tracks on their way they passed a car standing near the sidewalk, when plaintiff in error stepped behind the car and struck a match, presumably for the purpose of lighting his cigar. At or about that time Smith and Rachael Engle passed by, when plaintiff in error shot Miss Engle, the ball entering the back in the region of the eighth or ninth dorsal vertebra, penetrating the spinal column, severing the spinal cord, and becoming buried and lodged in the anterior portion of the bone. This wound produced immediate, total, and permanent paralysis of the whole of that portion of the body below it, and Miss Engle fell helpless to the ground. Plaintiff in error fired another shot with no effect, except that the powder struck the face of Smith, who was standing where Miss Engle fell. Whether this shot was fired at Smith or not is a matter of conjecture, but it was evidently not fired at Miss Engle. Plaintiff in error started to run away. Smith, at or about the same instant cursing him, calling him a bad name, and saying he would kill him, pursued him for a short distance, when he (Smith) returned to Miss Engle. This occurred at about the hour of half past 8, or a little before dark. Miss Engle was taken to a hospital, her wound examined, and she was made as comfortable as possible for the night. The surgeons, not being able to definitely locate the ball without making an incision, applied the X-ray, by which the location of the ball was determined, and an effort was made to extract it by enlarging the wound and chipping off and removing the fractured bones. It was discovered that the ball had passed through the spinal cord, completely severing it, and had become embedded in the bones of the inner portion of the spinal column. As the ball could do no further harm, it was permitted to remain. The wound healed up, and, except as to the paralysis of the lower parts of the body, gave but little trouble. The vital organs performed their functions naturally, food was taken and digested, but, the intestines and bladder being rendered inactive, it was necessary that evacuations should be produced by artificial means. The bladder was relieved by the insertion of a glass catheter two or three times each day. After the healing of the wound in the back, the victim suffered little, if any, pain. About the beginning of December, 1906, while an attendant was using the catheter, it was, by accident, broken in two, and the severed end, about 2 1/2 inches long, remained in the bladder. This was allowed to remain for some time, probably eight or ten days when it was removed by an operation which consisted of making an incision through the wall of the body and into the bladder. At that time bed sores had appeared upon the body;...