Henry v. State

• Decision Date: 21 April 1897
• Parties: HENRY v. STATE.
• Court: Nebraska Supreme Court

51 Neb. 149

70 N.W. 924

HENRY

v.STATE.

Supreme Court of Nebraska.

April 21, 1897.

Syllabus by the Court.

1. Whoever kills another while engaged in the perpetration or attempted perpetration of any rape, robbery, arson, or burglary, is by section 3, Cr. Code, declared to be guilty of murder in the first degree.

2. It is in such case, in order to sustain a conviction for murder in the first degree, not essential that the killing be such as, in the absence of the statute, would amount to murder, as distinguished from manslaughter.

3. The jurors are, under our practice, judges of the probative force of the evidence.

4. It is error in a criminal prosecution for the trial court to discredit a particular defense, by advising the jury that it is one “easily fabricated, that it has occasionally been successfully fabricated, and that the temptation to resort to it as a spurious defense is very great, especially in cases of importance.”

5. It is not essential that the proof of an alibi should include the entire period during which the offense might possibly have been committed, but will entitle the accused to an acquittal whenever the evidence is sufficient to create in the minds of the jurors a reasonable doubt of his presence at the commission of the offense with which he stands charged. Casey v. State, 68 N. W. 643, 49 Neb. 403.

6. An erroneous instruction is not cured by the mere giving of another on the same subject, contradicting it. Bank v. Lowrey, 54 N. W. 568, 36 Neb. 290.

Error to district court, Gage county.

William Henry was convicted of murder, and brings error. Reversed.Bush & Bush and R. D. Sutherland, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

POST, C. J.

The plaintiff in error, William Henry, was by the county attorney of Jefferson county, jointly with one Zimmerman, charged with the crime of murder in the first degree. A change of venue was, on his motion, allowed to Gage county, where a separate trial was had, resulting in a verdict of murder in the second degree, and sentence to imprisonment in the penitentiary for a term of 10 years, which judgment it is sought to reverse by means of this proceeding. The information, in apt language, charges the defendants therein with fatally shooting the deceased, Russell S. Graham, purposely and of their deliberate and premeditated malice, with intent him, the said Graham, thereby to kill and murder.

The first assignment of error to which our attention is directed by the argument of counsel for plaintiff in error relates to the giving of the following instruction, on the court's own motion: “The court instructs you that the crime of murder in the first degree is committed when a person of sound memory and discretion, unlawfully, purposely, and with deliberate and premeditated malice, kills another person, in the peace of the state, or when, in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, he shall unlawfully kill another person in the peace of the state. In this case, if you find from the evidence, beyond a reasonable doubt, that the defendant, William Henry, unlawfully, purposely, and of deliberate and premeditated malice, killed Russell S. Graham, on or about the 5th day of June, 1895, in the county of Jefferson and state of Nebraska, or if you find from the evidence, beyond a reasonable doubt, that, in the perpetration or attempt to perpetrate a robbery or burglary, William Henry unlawfully killed Russell S. Graham on the 5th day of June, 1895, in the county and state aforesaid, in the manner and form charged in the information, then you should find the defendant guilty by your verdict; and in that event you should find by your verdict what the penalty shall be, whether the defendant shall suffer death, or shall be imprisonedin the penitentiary during his natural life.” The contention of counsel, as we understand their position, is that, in order to authorize a verdict of murder in the first degree when the homicide is shown to have been committed in the perpetration or attempted perpetration of a rape, robbery, arson, or burglary, it is not sufficient that the killing be unlawful, in the sense that it would, in the absence of the statute hereafter cited, warrant a conviction on the charge of manslaughter, but must be such as to amount to murder in the first or second degree. In other words, they contend that so much of section 3 of the Criminal Code as provided that, if any person, “in the perpetration or attempt to perpetrate any rape, robbery, arson or burglary * * * kill another, * * * every person so offending shall be deemed guilty of murder in the first degree,” should be construed to mean if any person “murder another,” etc. But to that argument a sufficient answer is that the legislature has not so enacted, but has, on the contrary, declared that whoever kills another in the perpetration or attempted perpetration of either of the enumerated felonies shall be deemed guilty of murder. In so doing, the legislature has, in the language of an eminent exponent of the criminal law, merely drawn its lines around the particular combination thus included, under a penalty. 1 Bish. Cr. Law, § 776. “Where,” as said by the same author, “the law forbids a defined combination of act and intent, and provides a penalty for the violation of the inhibition, it establishes a distinct or specific crime.” Id. § 599. With such frequency has the rule as thus stated been applied in the administration of the criminal law that its soundness may be said to be generally recognized in this country. Smith v. State, 34 Neb. 689, 52 N. W. 572; Graves v. State, 45 N. J. Law, 204, 358; Moynihan v. State, 70 Ind. 126;Buel v. People, 78 N. Y. 492.

Although the evidence has not been presented by means of a bill of exceptions, it is apparent that there was an attempt to establish an alibi, and with respect to which the court, in general terms, charged that it was sufficient, for the purpose of the defense relied upon, if the jury, from a consideration of all the evidence, entertained a reasonable doubt of the presence of the accused at the commission of the homicide. It also, at the request of the state, gave the following instructions, which are now assigned as error: “(9) The effect of an alibi, when established, is like that of any other conclusive fact presented in a case, showing, as it does, that the party asserting it could not have been present at the time of the homicide, and therefore did not participate in it. It is, when credited, a defense of the most conclusive and satisfactory character. The fact, however, which experience has shown, that an alibi, as a defense, is capable of being, and has been occasionally, so successfully fabricated that, even when wholly false, its detection may be a matter of very great difficulty, and that the temptation to resort to this as a spurious defense may be very great, especially in cases of importance. These are considerations attendant upon this defense, which call for some special suggestions upon the part of the court. These are that while you are not to hesitate at giving this, as a...