Moore v. State

• Decision Date: 17 October 1947
• Docket Number: 32268.
• Citation: 29 N.W.2d 366,148 Neb. 747
• Parties: MOORE v. STATE.
• Court: Nebraska Supreme Court

29 N.W.2d 366

148 Neb. 747

MOORE v. STATE.

No. 32268.

Supreme Court of Nebraska

October 17, 1947

Syllabus by the Court.

1. Errors assigned but not argued will be considered as waived.

2. Sections 28-401 and 28-402, construed with section 29-2027, R.S.1943, define the degrees of the crime of criminal homicide, a single offense, and prescribe the duty of the court and jury in ascertaining the degree and imposing sentence.

3. The unlawful killing constitutes the principal fact but the condition of the mind or attendant circumstances determine the degree or grade of the offense, and the greater of the degrees includes the lesser degrees, they being necessarily involved as a constituent part of the higher crime.

4. Consequently, if the information charges murder in the first degree, a conviction of murder in the second degree, or manslaughter, may lawfully be sustained, although the evidence was sufficient to have sustained a verdict of murder in the first degree.

5. Where an information charges the crime of murder in the first degree, murder in the second degree and manslaughter are included in the charge, the degree ordinarily being for the jury, and where the evidence and circumstances of the killing are such that different inferences may properly be drawn therefrom as to the degrees, it becomes the duty of the court to submit the different degrees to the jury for them to draw the inferences.

6. Under our code of criminal procedure the law does not distinguish between principals in the first and second degrees, and whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.

7. The same rule as to the information, conduct of the case, and punishment, applicable to principal in fact now governs his aider, abettor, or procurer, and no additional facts need to be alleged in an information against the latter than are required against his principal.

Ross D. Druliner, Jr., of Benkelman, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Leslie Boslaugh, Asst. Atty Gen., for defendant in error.

Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE JJ., and THOMSEN, District Judge.

CHAPPELL Justice.

Plaintiff in error, hereinafter called defendant, was charged with murder in the first degree for the death of George Wallace by shooting. Chris Courtright and Al Mathes were jointly charged with the same offense in the same information. Defendant pleaded not guilty, and upon a separate jury trial was found guilty of murder in the second degree. His motion for new trial was overruled and he prosecuted error to this court.

Defendant's petition in error contains 34 alleged errors, and his brief formally contains 15 assignments of error. However, only two of such assignments were argued to the court or in his brief, which makes applicable the rule that errors assigned but not argued will be considered as waived. Maher v. State, 144 Neb. 463, 13 N.W.2d 641; Mason v. State, 132 Neb. 7, 270 N.W. 661; Madsen v. State, 44 Neb. 631, 62 N.W. 1081.

In conformity therewith, we will confine our discussion to the two assignments so argued, which are substantially: (1) That the evidence adduced was insufficient to sustain the charge of murder in the first degree, therefore the submission of that issue to the jury by the trial court over defendant's timely objections was prejudicial error, and (2) that the evidence adduced was insufficient to sustain the verdict of murder in the second degree. We conclude that the assignments cannot be sustained.

Section 28-401, R.S.1943, as applicable to this case, provides: 'Whoever shall purposely and of deliberate and premeditated malice * * * kill another; * * * shall be deemed guilty of murder in the first degree, * * *.'

Section 28-402, R.S.1943, provides: 'Whoever shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree; * * *.'

The above-quoted sections are construed with section 29-2027, R.S.1943, which provides that: 'In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter; * * *.'

In State v. Hutter, 145 Neb. 798, 18 N.W.2d 203, 208, this court recently said that the above-quoted sections: '* * * define the degrees of the crime of criminal homicide, a single offense. The unlawful killing constitutes the principal fact and the condition of the mind or attendant circumstances determine the degree or grade of the offense, and when the greater of the degrees has been committed, the lesser degrees have also been committed, they being necessarily involved as a constituent part of the higher crime. Consequently, a conviction of murder in the second degree, or manslaughter, could legally be sustained, although the evidence made out a case of murder in the first degree.'

That opinion also calls attention to the fact that the trial court was duty bound to submit to the jury such degrees of the crime charged as found sufficient support in the evidence adduced. See, also, Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124, 165 A.L.R. 932. It follows that if, as we affirmatively conclude, the evidence adduced was sufficient to have sustained a verdict of murder in the first degree, it was of necessity sufficient to sustain a verdict of murder in the second degree, and defendant's second assignment of error falls of its own weight without further discussion of it.

We must bear in mind that no complaint is made by defendant of the form and substance of the trial court's inclusive instructions which submitted the respective degrees of the crime charged to the jury. We are, therefore, not required to elaborate upon a technical discussion of the respective necessary elements submitted, which the state was required to prove beyond a reasonable doubt, or the comprehensive definitions contained in such instructions. It is sufficient to say that we are concerned only with the sufficiency of the evidence adduced to justify submission of murder in the first degree to the jury.

As recently as Jackson v. Olson, supra, this court reaffirmed the rule that: 'Where an information charges the crime of murder in the first degree, murder in the second degree and manslaughter are included in the charge, the degree ordinarily being for the jury; and where the evidence and circumstances of the killing are such that different inferences may properly be drawn therefrom as to the degree, the court should submit the different degrees to the jury for them to draw the inference. [146 Neb. 885, 22 N.W.2d 133]' See, also, Denison v. State, 117 Neb. 601, 221 N.W. 683; and Jackson v. State, 133 Neb. 786, 277 N.W. 92.

Bearing the foregoing rules in mind, we have examined the record. Without dispute, the death of Wallace occurred sometime during the night of September 26, 1946, as the result of internal hemorrhages caused by a .22-caliber bullet wound through the chest. The bullet coursed from the right front, between his ribs, and through his right lung toward the rear of his body, where it lodged in approximately the ninth thoracic vertebrae of his spine. He also had a frontally affected, tearing, groove-type shotgun wound in his left leg, about six inches above the knee, which wound of itself was not sufficient to have caused his death.

On the morning of September 27, 1946, Courtright called the sheriff telling him: 'There's a dead man lying down on my doorstep.' Shortly thereafter, Wallace's body was found by the sheriff and others, lying on its right side on the ground, head to the...