Lamma v. State

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL, C. J.
• Citation: Lamma v. State, 46 Neb. 236, 64 N.W. 956 (Neb. 1895)
• Decision Date: 06 November 1895
• Docket Number: 6288
• Parties: JOSEPH LAMMA v. STATE OF NEBRASKA

64 N.W. 956

46 Neb. 236

JOSEPH LAMMA v. STATE OF NEBRASKA

No. 6288

Supreme Court of Nebraska

November 6, 1895

ERROR to the district court for Buffalo county. Tried below before HOLCOMB, J.

AFFIRMED.

C. W McNamar, for plaintiff in error, in support of an argument that the evidence is insufficient to sustain the verdict cited the following authorities: Bruner v. State, 58 Ind. 159; Dressen v. State, 38 Neb. 375; State v. Dierberger, 96 Mo. 667; Jackson v. State, 5 So Rep. [Miss.], 690; Wharton, Criminal Law, sec. 933; State v. Sloan, 47 Mo. 604.

F. G. Hamer and H. M. Sinclair, also for plaintiff in error.

A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state:

The facts do not present a case of justifiable homicide. Under the evidence the plaintiff in error is at least guilty of manslaughter. (Wharton, Criminal Evidence, sec. 836; United States v. Ross, 92 U.S. 283; Head v. Martin, 3 S.W. [Ky.], 623; 2 Bishop, Criminal Law, 662, 663; Commonwealth v. York, 50 Mass. 93; Clements v. State, 50 Ala. 117; State v. Bland, 97 N. Car., 438; State v. McNinch, 90 N. Car., 696.)

OPINION

The facts are stated in the opinion.

NORVAL, C. J.

An information in due form was filed in the district court of Dawson county by the county attorney, charging Joseph Lamma the plaintiff in error, with murder in the first degree, for the killing of one George Rogers on the 1st day of November, 1892. To the charge the accused entered a plea of not guilty. A trial was had, and the jury being unable to agree they were discharged. Subsequently the place of trial was changed, on application of the prisoner, to Buffalo county. The accused was again placed upon trial in the last named county, which resulted in a conviction of manslaughter. The court overruled a motion for a new trial, and sentenced the prisoner to imprisonment in the state penitentiary for the period of eighteen months. He has prosecuted a petition in error to this court to obtain a review and reversal of this judgment. The petition in error contains eighteen assignments, but two of which are relied upon in the briefs for a reversal, which we will proceed to examine.

In the outset it should be stated that the killing is admitted. The defense interposed is justifiable homicide. It is argued that the court erred in failing to instruct the jury that the burden of proof was upon the state to establish that the homicide was not justifiable. There are two answers to this contention. In the first place, no request to charge the jury was submitted by counsel for the accused. Had such an instruction been tendered and refused, then the action of the trial court could have been reviewed. The question discussed is not presented by the record. Again, the court in its charge, after fully and fairly stating the rule of justifiable homicide as applicable to the facts disclosed by the evidence, told the jury if from the evidence they entertained a reasonable doubt of the guilt of the defendant of either of the offenses charged in the information, it was their duty to return a verdict of acquittal, which direction was, in effect, that the burden was upon the state to prove that the killing was not justifiable, not by a preponderance of the evidence merely, but beyond a reasonable doubt. The instructions given fully covered the point.

The other assignment relied upon in the brief is that the evidence is insufficient to sustain the verdict. The record shows that the plaintiff in error at the time of the homicide was the deputy sheriff of Dawson county, and was in charge of four persons confined in the county jail. George Rogers, the deceased, was an inmate of the jail, awaiting trial on the charge of horse stealing. Joseph Smith was janitor at the court house, one of his duties being to carry the meals to the prisoners in the jail, which is in the basement of the court house. On the evening of the 1st of November, 1892 Smith carried to the jail the suppers for the prisoners, unlocked the door to the outside entrance to the jail, passed through the same and down a hall through a doorway to the right into a room about 14x17 feet, and from here to a grated door between this room and a large room termed the "cell room," where the prisoners were confined. The buckets containing the evening meals were set upon the floor near the side of this door, and Smith thereupon unlocked and opened the iron-grated door. Rummel, one of the prisoners, then came forward, and stooped down to get the meals, whereupon, Rogers, the deceased, jumped over Rummel, knocked Smith back against the wall, and ran towards the outside door, Smith crying, "Help Help Murder " About the same instant Lamma reached the outside entrance to the jail from the street, and, observing Rogers coming, said ...