Kennison v. State

• Decision Date: 06 February 1909
• Docket Number: 15,718
• Citation: 119 N.W. 768,83 Neb. 391
• Parties: ERNEST S. KENNISON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

119 N.W. 768

83 Neb. 391

ERNEST S. KENNISON v. STATE OF NEBRASKA

No. 15,718

Supreme Court of Nebraska

February 6, 1909

ERROR to the district court for Kimball county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

Hamer & Hamer, for plaintiff in error.

William T. Thompson, Attorney General, and Grant G. Martin, contra.

ROOT J. ROSE, J., not sitting.

OPINION

ROOT, J.

Defendant appeals from a sentence of 23 years at hard labor in the state penitentiary upon a conviction of murder in the second degree. This is a second appeal, a former conviction having been reversed. 80 Neb. 688.

1. Defendant asserts that the district court for Kimball county did not acquire jurisdiction to try him, because it does not join any part of Scott's Bluff county, where the crime is alleged to have been committed. After reversal, on defendant's application, a change of venue was granted. The transcript discloses that defendant made a written application for a change "to some adjoining county," and the court ordered: "It is directed and ordered upon the request of the defendant that the venue thereof (of the case) and the place of trial be and the same is hereby changed to the county of Kimball." The attorney general asserts that this record establishes that defendant is responsible for said order and all that it contains, whereas defendant contends that he asked merely for a change to an adjoining county. The transcript discloses that two entries were made the same day in said case in Scott's Bluff county. One recites the making of the order for a change of venue merely, and the other that it was made at defendant's request. Defendant presents the record as a true one, and we shall treat the latter order as correct. Defendant did not object to the entry or take any exception thereto. He has not preserved the evidence upon which it was made, nor did he challenge the jurisdiction of the district court for Kimball county to try him. In fact, except as he raises the point in his brief, the record is silent as to any objection on his part concerning the change of venue. In State v. Crinklaw, 40 Neb. 759, 59 N.W. 370, we held that the constitutional right to a trial before a jury of the county where the crime was committed is a mere personal privilege of the accused which he would waive by applying for a change of venue. Defendant ought not to complain of that to which he not only consented but actually procured. Nor does the fact that the waiver applies to a constitutional right lessen its force or application. 1 Bishop, New Criminal Law, secs. 995, 996; 1 Bishop, New Criminal Procedure, sec. 50; Kent v. State, 64 Ark. 247, 41 S.W. 849; State v. Hoffmann, 75 Mo.App. 380; Weyrich v. People, 89 Ill. 90; Lightfoot v. Commonwealth, 80 Ky. 516; Perteet v. People, 70 Ill. 171; Krebs v. State, 8 Tex. Ct. App. 1; State v. Kent, 5 N.D. 516. The district court for Kimball county had jurisdiction to try defendant.

2. It is argued in the brief that the court erred in overruling defendant's challenges for cause to the veniremen Bobbit and Brown. Neither of those gentlemen formed part of the jury that tried defendant, nor does the record affirmatively disclose that he employed any of his peremptory challenges to exclude them therefrom. For all the record advises us, they may have been excused on the peremptory challenge of the state or by agreement of the parties. Error will not be presumed, and defendant's said assignment of error is not well taken.

3. Defendant requested and the court refused the following instructions:

"1. If you find that the revolver was accidentally discharged at the time the last shot was fired, neither the deceased nor the defendant having complete control of the revolver, but both struggling for the possession of it, or if you have a reasonable doubt whether it was not so discharged, you cannot find the defendant guilty of murder in the first or second degree.

"2. Before you can find the defendant guilty of murder in the first degree or murder in the second degree, you must find that he intended to cause the death of the deceased and that he purposely discharged the revolver at the time the last shot was fired. If the discharge of the revolver at that time was accidental or you have a reasonable doubt whether it was not accidental, you should acquit the defendant of murder in the first and second degree."

Counsel assert that there was sufficient evidence tending to support their theory of an accidental discharge of the revolver to entitle them to these instructions. The court had with commendable clearness instructed the jurors as to the various degrees of homicide, and that the burden was on the state to prove the elements essential to constitute murder in the first or second degree or manslaughter, as the case might be, and that defendant was not guilty of murder in the second degree unless he maliciously and purposely killed the deceased. It had also given defendant the benefit of the defense of intoxication and of self-defense. The testimony tends to prove that defendant for some weeks preceding the tragedy had entertained the thought of beating Mr. Cox, the deceased; that on one occasion he had challenged him to fight in the street, and Cox had refused; that he frequently referred to deceased in vile language; that on the afternoon of the 29th, the day the crime was committed, defendant stated that Cox had to take a whipping, that there was no way out of it; and that a short time before the encounter defendant had stated that he would whip the first man he met that afternoon that he didn't like. Defendant then went into a drug store for some purposes of his own, and, coming out, stated to the deceased, who was also in said store, that he wanted to see him, and Cox went out with defendant. Soon thereafter the noise of scuffling attracted attention, and individuals in a bank and store building either went to the windows or out into the street, and noticed Kennison and Cox fighting. One witness claims to have seen the first blow struck, and testified that defendant was the aggressor, whereas Kennison testified that Cox was the guilty person. The testimony is overwhelming that, although Cox was the better boxer and was more than holding his own, he retreated from 20 to 40 feet from the point where the fight commenced, and finally knocked defendant against a store building, and then stepped back about 6 feet with his hands at his sides; whereupon Kennison drew a revolver from his pocket and fired at Cox. Cox then rushed toward defendant, was shot in the left arm, and, after the parties had grappled, the fatal shot was fired, so that the bullet penetrated the neck of deceased about two inches below the lobe of the left ear, and, following a downward course, severed veins and arteries, causing almost instant death. No witness other than defendant testified that Cox had made any movement intermediate the time defendant was knocked against the building and the instant that Kennison put his hand back toward his hip pocket. Defendant excuses his conduct in commencing to shoot by saying that he was whipped and scared; that he had thrown up his hand and asked Cox to quit; whereas witnesses but a few feet distant testified that they only heard Kennison utter an oath. Defendant did not testify that he feared any serious beating at the hands of Cox, nor does that seem probable with several disinterested men within 20 feet of him.

The court, in its solicitude for defendant, gave instructions concerning self-defense, and properly refused to mingle therewith anything relating to an accidental discharge of the firearm. Defendant did not accidentally draw the revolver from his pocket or by misadventure point it at and shoot Cox. There is no claim that the first and second shots were not the result of intent, action and control on the part of Kennison. If the circumstances warranted him in shooting in self-defense, he was justified in doing what was done up to that time, and still more...