Johnson v. State
| Decision Date | 31 July 1924 |
| Docket Number | 23714 |
| Citation | 199 N.W. 808,112 Neb. 530 |
| Parties | ANDREW JOHNSON v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dodge county: FREDERICK W. BUTTON JUDGE. Affirmed.
AFFIRMED.
Dolezal Spear, Mapes & Stevens, and J. J. Gleeson, for plaintiff in error.
O. S Spillman, Attorney General, and Lloyd Dort, contra.
Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, GOOD and THOMPSON, JJ.
In a prosecution by the state in the district court for Dodge county, Andrew Johnson, defendant, was charged with murder in the first degree. He pleaded not guilty and upon trial was convicted of manslaughter. For that felony he was sentenced to serve a term of not less than 12 nor more than 14 months in the penitentiary. As plaintiff in error defendant presents for review the record of his conviction.
The principal argument is directed to the assignment that the trial court erred in admitting in evidence proof of statements or declarations by the victim of the homicide after he had been fatally wounded. This and other assignments of error require a consideration of the evidential facts.
William Jurging died October 31, 1922, from a gunshot wound inflicted in North Bend, October 26, 1922, between 5:30 and 7 o'clock in the afternoon. Andrew Johnson, defendant, was accused of firing the fatal shot. Disregarding for the moment all objections to evidence admitted at the trial, there is testimony tending to prove the following facts: Defendant, a dipsomaniac, was 64 years of age. He was a painter and lived alone. He met Jurging and James Herbert in a barber shop in North Bend about 5:30 in the afternoon, October 26, 1922. Jurging said he had a bottle, and defendant replied that he had one too, at home. Jurging then suggested going to the home of the defendant. The three, Jurging, Herbert, and defendant, left the barber shop together and departed in the latter's automobile. A little later, defendant driving they arrived at his home a few blocks from the barber shop. Jurging and defendant, and perhaps Herbert, had been drinking. Defendant unlocked the door of his garage, drove his automobile in, and came out and relocked the garage. All three went into his house and took turns in drinking from the contents of two bottles. Between 6 and 7 o'clock, approximately 6:15 or 6:30, defendant knocked at the door of Hans Anderson, a near neighbor and said: "There is a dead man outside." Anderson investigated and, in front of his house, found Jurging apparently helpless on the ground in the street between the sidewalk and the curb. Within a few minutes neighbors helped Jurging into an automobile, assuming he was drunk, and took him about half a mile to the home of Herman Haasch, where he had been living. There it was immediately discovered that he had a bullet hole in his breast. A physician arrived promptly in response to a call. Jurging remained at the Haasch home perhaps two hours or more, but it was not lighted by electricity, and for that reason he was taken a short distance to the home of Leroy Widener, where an operation was performed before midnight. Not long after Jurging had been taken off the street, an officer found defendant on the ground in a drunken stupor in front of Anderson's home, took him home, put him in bed with his clothes on, locked the door, and left him there alone, not knowing Jurging had been shot. Later in the night, with his position and condition apparently unchanged, the sheriff broke in, aroused him with difficulty and took him to Fremont and imprisoned him in the county jail. While searching the defendant's home at the time of the arrest, two partially emptied bottles were standing on the kitchen table and there was a revolver under a cloth on a desk in the sitting room. The revolver contained four loaded cartridges, and one empty shell which still retained the odor of recently exploded powder. The bullet afterward found in the body of Jurging corresponded to those remaining in the revolver. Herbert, who perhaps knew what occurred at the spree, disappeared. Jurging died five days after he was shot. Defendant was a witness at the trial, but did not tell the story of the homicide. He testified he was a dipsomaniac; became unconscious during the drinking in his kitchen; knew nothing that occurred until restored to consciousness in the county jail the next morning; had no recollection of intervening events. Notwithstanding this testimony, he said he did not shoot Jurging--evidence relating to an event which occurred during his estimated period of unconsciousness. This statement, however, may have been based on the theory that he was mentally irresponsible and incapable of a homicidal...
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