Housh v. State

• Decision Date: 02 January 1895
• Docket Number: 6926
• Citation: 61 N.W. 571,43 Neb. 163
• Parties: GEORGE P. HOUSH v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

61 N.W. 571

43 Neb. 163

GEORGE P. HOUSH v. STATE OF NEBRASKA

No. 6926

Supreme Court of Nebraska

January 2, 1895

ERROR to the district court for Antelope county. Tried below before ROBINSON, J.

AFFIRMED.

N. D Jackson, for plaintiff in error, cited: Wharton, Criminal Law [9th ed.], secs. 488, 489; Clark v. State, 32 Neb 246; Long v. State, 23 Neb. 51; Billings v State, 107 Ind. 54; Gandy v. State, 23 Neb. 448.

Geo. H. Hastings, Attorney General, contra, cited: Gallagher v. State, 3 Minn. 185; People v. Williams, 32 Cal. 280; People v. Campbell, 30 Cal. 312; Rasberry v. State, 1 Tex. App., 664; Stewart v. State, 1 Ohio St. 66; People v. Anderson, 44 Cal. 65; State v. Quin, 3 Brev. [S. Car.], 568; People v. Doe, 1 Mich. 451; Patten v. People, 18 Mich. 314; Cotton v. State, 31 Miss. 504; Horrigan & Thompson, Cases on Self-Defense, 476; Oliver v. State, 17 Ala. 587; Dupree v. State, 33 Ala. 380; State v. Benham, 23 Iowa 154; State v. Burke, 30 Iowa 331; Noles v. State, 26 Ala. 31; Reg. v. Bull, 9 C. & P. [Eng.], 22; Dill v. State, 25 Ala. 15; 1 Bishop, Criminal Law, secs. 842, 843; Davis v. State, 31 Neb. 240; Parrish v. State, 14 Neb. 60; State v. Vance, 17 Iowa 138; State v. Scott, 4 Ired. [N. Car.], 409; Atkins v. State, 16 Ark. 568; Shorter v. People, 2 Com. [N. Y. ], 193; State v. Horne, 9 Kan. 120; 1 Wharton, Criminal Law, sec. 102; Curry v. State, 4 Neb. 552; Palmer v. State, 4 Neb. 68; Schlencker v. State, 9 Neb. 242; Milton v. State, 6 Neb. 143; Carr v. State, 23 Neb. 755; Vollmer v. State, 24 Neb. 844; Commonwealth v. York, 9 Met. [Mass.], 104; Creek v. State, 24 Ind. 151; State v. Collins, 32 Iowa 36; Patterson v. People, 46 Barb. [N. Y.], 625; State v. Matthews, 78 N. Car., 523; Steinmeyer v. People, 95 Ill. 383; State v. Rose, 30 Kan. 501; Panton v. People, 5 Am. Crim. Rep. [Ill.], 425, note; Barnards v. State, 88 Tenn. 229; White v. Territory, 3 Wash. Ter., 397; St. Louis v. State, 8 Neb. 405.

OPINION

POST, J.

The facts of this case must have appealed strongly to the sympathies of the jury, as they certainly do to ours. On the day of the homicide the prisoner, a small and feeble man, weighing less than 135 pounds, and a cripple, his left leg having been amputated above the knee, was three times assaulted by the deceased, a man weighing nearly 200 pounds. On each occasion the prisoner was thrown to the ground and violently choked by the deceased, who was at the time intoxicated, and who during one of such assaults is shown to have threatened the prisoner's life. The only apparent provocation for said assaults, or any of them, was the fact that the prisoner had denounced the action of the deceased in striking and otherwise abusing Ernest Staples, a boy sixteen years of age, who at the time in question had business at the livery stable where the altercation occurred, and who had, by some means not disclosed, excited the enmity of the deceased. On releasing the prisoner after the last assault, the deceased followed the boy above named to where the latter was in the act of unhitching his horse, about forty feet from the stable. After punishing the boy to his satisfaction he started to return to the stable along the sidewalk at a right angle therewith, pushing and kicking the boy before him. When he reached the stable door the prisoner, who was standing just inside the threshold, struck him a blow in the neck with a knife, completely severing the jugular vein, and from which death resulted almost instantly. The theory of the state is that the prisoner, incensed by the wrongs he had suffered, followed the deceased to the door and, waiting for his return, struck the fatal blow without warning and without sufficient provocation. On the other hand the prisoner contends that in taking the life of the deceased he was acting in self-defense and upon sufficient provocation. There is evidence tending to prove that he was at the fatal moment resting against the cheek or casing of the door, engaged in adjusting the wooden leg to his limb, which was rendered necessary in consequence of the violence just suffered at the hands of the deceased. He accounts for the presence of the knife at the instant of homicide by the fact that it was necessary to make a hole in the strap used to support his wooden limb, and which was broken during the scuffle. The witnesses for the prisoner and some of those for the state testify that as the deceased approached the door he was commanded by the prisoner to let the boy alone. The deceased then rushed at him, but was ordered to stand back or he would get hurt. At that time, according to the same witnesses, the deceased was about four feet from the prisoner with his hand raised as if about to strike. According to the testimony of the latter the deceased had something in his hand which was believed to be a knife, and being unable to retreat on account of the injuries just suffered, there was no alternative but to defend himself by use of the means employed. Other witnesses, evidently not unfriendly to the prisoner, testify that he was standing with his left hand on the door casing and his right hand, in which he was holding the knife, behind him, and as he ordered the deceased to stand back he took one step forward and struck with the result stated. The question of justification was submitted to the jury on the foregoing evidence, and while a verdict of acquittal would perhaps have been quite as satisfactory to the trial court, we can perceive no ground for interference. The question whether there existed in the mind of the prisoner an apprehension based upon reasonable grounds therefor of imminent peril to life or limb through the further assault of the deceased, and whether the means adopted for his defense were reasonable and appropriate for that purpose, in view of all the circumstances surrounding him at the time, is essentially one of fact. No mere difference of opinion between the judge and the jury will warrant the setting aside of a verdict based upon conflicting evidence. There is a wide distinction between such a case and one in which there is a failure of proof upon a material issue or where the verdict is so clearly wrong as to lead irresistibly to the conclusion that it is the result of prejudice, passion, or inattention to the evidence. It cannot, therefore, be said that the judgment is so clearly against the evidence as to call for a reversal of the judgment on that ground. The conclusion renders necessary an examination of the other assignments of error.

2. Exception is taken to paragraph No. 5 of the instructions given by the court on its own motion, as follows: "In a prosecution for murder in the first degree, if the evidence fails to sustain such charge, the jury may, if the evidence warrants, find the defendant guilty of murder in the second degree, or manslaughter, as the case may be." The particular criticism of this instruction is that it is incomplete, since the jury were thereby allowed no alternative but to convict either of murder or manslaughter and not permitted to render a verdict of acquittal. The criticism is, however, not merited, as the jury were in other paragraphs instructed fully and accurately upon the subject, and in explicit terms directed to acquit unless satisfied beyond a reasonable doubt that the killing was not justifiable on the ground of self-defense.

3. The next exception is directed to instruction No. 11, viz: "'Malice,' in its legal sense, differs from the meaning which it bears in common speech. In common acceptation it signifies ill-will, hatred, or revenge toward a particular individual. Such a condition of mind would, of course, constitute malice in the eye of the law, but such is not necessarily its legal sense. 'Malice,' in its legal sense, denotes that condition of mind which is manifested by the intentionally doing of a wrongful act without just cause or excuse. It means any willful or corrupt intention of the mind." The above definition of "malice," it is argued, is incomplete, but we regard it as substantially within the definition in Harris v. State, 8 Tex. Ct. App. 90, and which was approved in Carr v. State, 23 Neb. 749, 37 N.W. 630. It is certainly not in conflict with the authorities cited by REESE, J., in the last named case, and possesses merit which cannot unfortunately be claimed for every instruction which we have had occasion to examine, viz, brevity and perspicuity.

4. The next assignment involves the following instruction: "You are instructed as a matter of law that when a person is assaulted by another, and from the nature of the attack viewed in the light of any previous threat or hostile declaration made by the assailant and of his known character for violence, the party assaulted has reasonable grounds to believe and does believe that the assailant intends presently to take his life or do him some bodily injury, he will be justified in killing his assailant, providing the circumstances are such that such extreme measure would seem to the comprehension of a reasonable man necessary in such situation to prevent the threatened injury. Whether the appearances of danger are sufficient to convince a reasonable man in the situation of the accused that death or the infliction of great bodily harm upon the person of the accused was intended by the deceased is a question of fact for the jury." The criticism of the foregoing proposition is stated with great force and precision in the brief submitted by counsel for the prisoner, from which we quote as follows: "It [the instruction] requires the jury to measure the defendant's mental responsibility, not...