LaMma v. State

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: LaMma v. State, 46 Neb. 236, 64 N.W. 956 (Neb. 1895)
• Decision Date: 06 November 1895
• Parties: LAMMA v. STATE.

46 Neb. 236

64 N.W. 956

LAMMA

v.STATE.

Supreme Court of Nebraska.

Nov. 6, 1895.

Syllabus by the Court.

1. A sheriff or other police officer, in arresting or preventing the escape of a felon, may use such force as is reasonably necessary, even to the taking of life; but if the felon can be taken, or his escape prevented, without killing the offender, and he be slain, the officer is guilty of, at least, manslaughter.

2. Held, that a conviction of manslaughter is sustained by the evidence.

Error to district court, Buffalo county; Holcomb, Judge.

Joseph Lamma was convicted of manslaughter, and brings error. Affirmed.C. W. McNamar, F. G. Hamer, and H. M. Sinclair, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

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 18 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 18 assignments, but 2 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 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 courthouse, one of his duties being to carry the meals to the prisoners in the jail, which is in the basement of the courthouse. 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...