Housh v. State

Citation43 Neb. 163,61 N.W. 571
PartiesHOUSH v. STATE.
Decision Date02 January 1895
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Evidence examined, and held sufficient to sustain the verdict of manslaughter.

2. An instruction in a prosecution for murder, to the effect that the jury may, if the evidence warrants, convict of murder in the first degree, murder in the second degree, or manslaughter, is not objectionable on the ground that it excludes a verdict of acquittal, and requires the jury to convict of a felonious homicide, particularly where in other paragraphs they are cautioned against conviction unless satisfied of the guilt of the prisoner beyond a reasonable doubt.

3. It is proper to instruct that “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.”

4. The bare belief of one assaulted that he is about to suffer death or great bodily harm will not of itself justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury.

5. It is not error, in a trial for murder, to instruct that the jury may take into consideration the interest of the prisoner in weighing his evidence. St. Louis v. State, 8 Neb. 405.

6. Mere nondirection by the trial court affords no ground for the reversal of a judgment, unless proper instructions have been asked and refused. Hill v. State (Neb.) 60 N. W. 916.

7. It is not error to refuse a new trial on the ground of newly-discovered evidence when the statements in the affidavit upon which it is based are contradicted by the sworn evidence of the proposed witness.

Error to district court, Antelope county; Robinson, Judge.

George P. Housh was convicted of manslaughter, and brings error. Affirmed.N. D. Jackson, for plaintiff in error.

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

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 16 years of age, who, at the time in question, had business at the livery stable where the altercation occurred, and who, 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 40 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 contendsthat 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, testified 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 that, 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...

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