Kastner v. State

• Decision Date: 21 June 1899
• Docket Number: 10634
• Citation: 79 N.W. 713,58 Neb. 767
• Parties: AUGUST KASTNER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

79 N.W. 713

58 Neb. 767

AUGUST KASTNER v. STATE OF NEBRASKA

No. 10634

Supreme Court of Nebraska

June 21, 1899

ERROR to the district court for Douglas county. Tried below before SLABAUGH, J. Affirmed.

AFFIRMED.

Albert S. Ritchie, James B. Kelkenney, and Thomas A. Donohoe, for plaintiff in error:

The nineteenth instruction, relating to malice and to the different degrees of murder, was erroneous. (Vollmer v State, 24 Neb. 838; Erwin v. State, 29 O. St 186; People v. Freel, 48 Cal. 436; Morgan v. State 16 Tex.App. 593.)

Instruction 24, relating to circumstantial evidence, was erroneous. (Morgan v. State, 51 Neb. 672.)

A portion of instruction 25 is erroneous because it singled out and weakened a portion of the testimony. (Horn v. State, 15 So. Rep. [Ala.] 278; Miles v. State, 19 S.E. 805 [Ga.]; State v. O'Grady, 65 Vt. 66; Bolling v. State, 54 Ark. 588; Brassell v. State, 91 Ala. 45.)

There was error in admitting testimony of the witness Stine, his name not having been indorsed on the information. (Kelly v. State, 51 Neb. 572; People v. Quick, 25 N.W. 302 [Mich.].)

C. J. Smyth, Attorney General, and W. D. Oldham, Deputy Attorney General, for the state.

OPINION

See opinion for statement of the case.

NORVAL J.

An information, consisting of two counts, was filed in the district court of Douglas county, charging, in the first count thereof, August Kastner, Joseph Kastner, and Louis Kastner with murder in the first degree, by having unlawfully, purposely, and feloniously, and of their deliberate and premeditated malice, killed and murdered one Daniel Tiedeman; and in the second count charging the murder of Tiedeman by said Kastners while they were in the commission of a burglary. Each of the prisoners, to the information, entered a plea of not guilty, and August Kastner, at his request, was granted a separate trial. After a portion of the evidence had been adduced the county attorney was permitted to enter a nolle proscqui as to the second count of the information; and at the close of the trial a verdict was returned finding August Kastner guilty of murder in the second degree, under the first count. His motion for a new trial was overruled, and imprisonment in the penitentiary for life was the sentence imposed. By this proceeding he seeks a reversal of this sentence and judgment.

To assist in understanding the discussion of the assignments of error relied upon for reversal it is deemed advisable to briefly state at this time some of the principal facts disclosed by the voluminous record in the case. From the evidence contained in the bill of exceptions it appears that about 3 o'clock in the morning of June 9, 1897, burglars broke and entered the saloon of William Nelson, located at the corner of Thirtieth and Spaulding streets, in the city of Omaha, of which fact the police department was advised during the commission of the burglary, and in response to this information policemen Daniel Tiedeman and A. J. Glover, together with one Riley,--a reporter for one of the city papers,--proceeded at once to Nelson's saloon. On arriving there Tiedeman and Riley went to the rear of the saloon and Glover proceeded to the front of the saloon to prevent the escape of the burglars, and to apprehend them in case they were in the building. As Glover approached the rear of the saloon he discovered, although cloudy and not very light, three persons on the outside of the building; and when he was within a short distance from them one of the three turned and shot Glover in the face with a revolver, and in the body with a shotgun, which rendered Glover unconscious for a time. He identified with reasonable certainty the person who fired these shots as being the accused, August Kastner. The officer also, while upon the witness-stand, described a portion of the clothes of the other two persons. Almost immediately thereafter Daniel Tiedeman came around the building, when he was shot in the abdomen with a shotgun fired by one of the three persons whom Glover had discovered going from the direction of the saloon. Tiedeman, shortly after receiving the wound, died from the effects thereof. He was unable to identify the person who fired the fatal shot, and no one else witnessed the shooting. The prosecution relied principally upon circumstantial evidence to fasten guilt upon the accused. The defendant denied the shooting and introduced evidence tending to establish an alibi: With this brief statement of the case we will proceed to a consideration of the assignments of error argued by counsel.

That portion of the charge of the court is assailed which defines the different degrees of murder. It is not contended, nor can it be successfully asserted, that this portion of the charge enunciated incorrect legal principles, but the argument advanced in favor of the accused is that it was improper to define to the jury the various degrees of murder, inasmuch as the evidence adduced disclosed that Tiedeman was killed by a person who at the time was committing a burglary, consequently the killing constituted murder in the first degree. Had the defendant been tried and convicted under the second count of the information, which charged murder in the commission of another felony,--a burglary,--there would be more force to the argument of his counsel relative to the question now under consideration. But the jury did not convict the accused of murder in the second degree under the second count. This count was eliminated by the county attorney's nolle prosequi, and the prosecution was conducted; and conviction had, under the first count, which charged murder in the first degree and included also all the lesser degrees of homicide; and it was not only proper, but it was clearly the duty of the trial judge, to correctly define to the jury the different degrees of murder. Had he failed to have so instructed the jury, we have no doubt that defendant's counsel would be here complaining of the omission. The accused was not prejudiced by the jury having been advised respecting the distinctions which mark the different degrees of murder.

The court gave the following instruction on its own motion: "19. In case of homicide, the law presumes malice from the unlawful use of a deadly weapon upon a vital part, and when the fact of unlawful killing or shooting causing death is proved, and no evidence tends to show express malice on the one hand, or any justification, mitigation, or excuse on the other, the law implies malice, and the offense is then murder in the second degree. You are instructed that in law a loaded gun is a deadly weapon, and if you believe from the evidence, beyond a reasonable doubt, that defendant August Kastner wantonly and cruelly, and without justification or excuse, shot and caused the death of Daniel Tiedeman with a deadly weapon, then the law presumes such shooting was done maliciously, unless you believe from the evidence it was done without malice." The vice imputed to this instruction by counsel for the accused is that it was not applicable to the case made by the evidence. It is conceded by the same counsel that, where nothing but the killing is shown, malice is presumed, and that in such a case the instruction quoted would be a proper one to give the jury, but where all the circumstances surrounding the homicide, and which shed or cast any light upon the intent with which the act was committed, are proven, such an instruction is improper. This court has stated the rule in homicide cases to be this: Where the fact of killing is shown, and there is no explanatory circumstance proven, malice is presumed and murder in the second degree is made out. (Preuit v. People, 5 Neb. 377; Milton v. State, 6 Neb. 136.) And in Vollmer v. State, 24 Neb. 838, 40 N.W. 420, it was ruled that an instruction similar to the one above quoted should not have been given, because all the circumstances of the killing had been fully detailed by those who witnessed the homicide, and the decision in the last named case is relied upon to secure a reversal here. In that case all the circumstances surrounding the transaction had been detailed before the jury by those who were present, and saw and heard what transpired. Extenuating facts were proven tending to show want of malice and that life was taken in self-defense. Manifestly the instruction given in that case, that malice was presumed from the facts of the killing and that the crime was murder in the second degree, was highly prejudicial to the defendant. But in the case at bar no person witnessed the shooting other than Tiedeman, whose life was taken. No one testified to any extenuating circumstance which would have warranted the jury in finding the killing was in self-defense, or that the offense was manslaughter. Had the proofs adduced been of such a character as to make it appear that the killing of Tiedeman was either justifiable or that the offense committed was below murder in the second degree, then the instruction criticized would have been misleading and prejudicial. As no mitigating circumstances were proven and no evidence was adduced tending to reduce the offense to manslaughter, it was perfectly competent for the court to inform the jury what facts and circumstances would justify them in finding the accused guilty of murder in the second degree. There is no merit in the suggestion of counsel that said instruction 19 was erroneous because there was no evidence that Tiedeman was shot by the defendant. The many circumstances developed on the trial point to the accused as the person who fired the shot which cost Tiedeman his life.

Complaint is made of the giving of instruction 24, which related to the subject of circumstantial evidence, upon two grounds: First, because it did not inform the jury that...