Leroy Childs v. State
| Decision Date | 10 October 1930 |
| Docket Number | 27369 |
| Citation | 232 N.W. 575,120 Neb. 310 |
| Parties | LEROY CHILDS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
Where in the trial of a homicide case, one of the counsel for the prosecution in the course of the trial made this remark to the jury, namely, " Since when has the law sanctioned killing for the collection of a bill for room rent?" held, that, the remark is grossly incompetent, not pertinent to the issues involved, and entirely aside from the record and should not have been made.
It is elementary that it is the duty of the jury to judge of the weight of the evidence, and it is within its province to pass upon the entire case and upon all of the competent evidence.
" A purpose to kill and malice are material elements of murder in the second degree and, under a charge therefor, both must be proved beyond a reasonable doubt." Whitehead v. State, 115 Neb. 143, 212 N.W. 35.
Evidence examined, and held insufficient to sustain a conviction of murder in the second degree.
Additional Syllabus by Editorial Staff.
In prosecution for murder, in which defense was that defendant ran for gun after decedent knocked defendant's mother down and that gun discharged accidentally, exclusion of physician's testimony as to effect of blow on defendant's mother held error.
Error to District Court, Douglas County; Fitzgerald, Judge.
Leroy Childs was convicted of second degree murder, and he brings error.
Reversed and remanded.
C. E. Walsh and R. C. Meissner, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON and EBERLY, JJ., and LESLIE, District Judge.
October 21, 1929, Leroy Childs was informed against in the district court for Douglas county and there charged with having, on about September 23, 1929, "unlawfully, maliciously, feloniously, and purposely, but without premeditation and deliberation, shot Albert Samples with a revolver and as a result thereof, he died on the 5th day of October, 1929; defendant thus committed murder in the second degree." The jury found the defendant guilty of murder in the second degree, as charged in the information. Thereupon the court imposed a sentence of fourteen years in the penitentiary upon the defendant. The defendant prosecutes error and prays to have the judgment reversed.
At, and for some time before the tragedy, the defendant's mother conducted a hotel in Omaha where Samples at one time roomed and boarded. On or about the evening of September 22, 1929, Samples and the defendant, with several others, were visiting at a place across the street from the Childs home and remained there until about 1:30 in the morning. At about this hour, the entire company remaining outside, the defendant entered his mother's home to get the key to her car to the end that he and his friends might go out for a drive. His mother, however, upon being informed of their plans, remarked that if Samples "has money enough to cabaret with, he has enough to pay me part of my room rent."
From the defendant's evidence it appears that his mother came out to the car as they were about to drive away on the evening in question and that, upon seeing Samples seated in the car, she asked him to settle for certain past-due room rent which she reminded him was unpaid. Thereupon she went upstairs, accompanied by Samples, ostensibly to examine an account book in the matter of the alleged room rent indebtedness, and in a few minutes the defendant followed them. However, on the defendant's appearance, Samples at once accused him of having returned to his mother's home not for the car key as he had represented, but to inform his mother that he, Samples, had some money; and this to the end that she might collect certain unpaid room rent which she said Samples owed her. About this time Samples started down the stairway, but, according to the defendant's evidence, he turned back, and the defendant testified that he observed that he had his hand on his hip. The defendant further testified that Samples then knocked his mother down and that he, the defendant, ran into a bedroom. Upon seeing a revolver on the dresser, he grabbed it and, reentering the room where Samples and his mother were, he discharged the gun into the floor. In the scuffle that immediately followed between them, the gun was accidentally discharged and Samples was thereby fatally wounded. The defendant averred that the gun in question belonged to his mother and that...
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