Murphey v. State

• Citation: 43 Neb. 34,61 N.W. 491
• Parties: MURPHEY v. STATE.
• Decision Date: 04 December 1894
• Court: Supreme Court of Nebraska

43 Neb. 34

61 N.W. 491

MURPHEY

v.STATE.

Supreme Court of Nebraska.

Dec. 4, 1894.

Syllabus by the Court.

1. In a prosecution under the provisions of section 17b, Cr. Code, for an assault with intent to inflict great bodily injury, it is sufficient to charge the offense in the language of the statute, without stating the means with which the assault was committed.

2. The term “great bodily injury,” as there employed, is not susceptible of a precise definition, but implies an injury of a graver and more serious character than an ordinary battery, and whether a particular case is within the meaning of the statute is generally a question of fact for the jury.

3. A great bodily injury, within the meaning of the statute, does not necessarily mean a permanent injury.

4. The trial court may, in its discretion, refuse to exclude the witnesses for the state from the court room during the trial, and such an order, in the absence of an evident abuse of discretion, is not the subject of review on appeal.

5. As a rule, the party holding the affirmative will not be permitted to prove again in rebuttal facts shown in making out his case in chief; but it is within the discretion of the court to permit the introduction, in closing, of evidence not strictly rebutting.

6. No wrong, however serious to the person of another, will alone warrant a conviction for an assault with intent to inflict great bodily injury; but, when the injury proved is the natural and necessary consequence of the deliberate and inexcusable act of the accused, the presumption is that it was the result contemplated by him in the commission of the assault. Such presumption is, however, one of fact merely; and, while the jury may infer the intention alleged without other proof, there is no obligation resting upon them to do so.

7. Nor is it essential to a conviction for such offense that the accused should have intended the precise injury which followed. It is sufficient if serious bodily harm of any kind was contemplated by him at the time of the assault.

8. The prisoner without provocation struck the prosecutor, an elderly man, a blow with his fist, instantly knocking him down, and kicked him twice or more. The latter, on attempting to arise, discovered that his right leg was broken. With the assistance of friends, he retreated across the street, where a few minutes later he was followed by the prisoner, who again struck him, saying, “D____n your old soul, I will teach you to keep your nose out of my business.” The prosecutor, who was suffering and helpless from the effect of his broken limb, was thrown or pushed by the prisoner from the sidewalk into the gutter, where the latter kicked at him several times, but the interference of bystanders prevented the infliction of further injury. Held to sustain the conviction for assault with intent to inflict great bodily injury.

9. Where the evidence by which it is sought to impeach a verdict on account of the prejudice of a single juror, subsequently discovered, is conflicting, an order denying a new trial will not, as a rule, be disturbed on appeal. Hill v. State (Sept. Term, 1894) 60 N. W. 916.

10. A party who chooses to accept a juror shown by his examination to be disqualified, on account of an opinion formed from a knowledge of the facts involved, cannot afterwards allege the prejudice of such juror as ground for a new trial.

Error to district court, Seward county; Bates, Judge.

James E. Murphey was convicted of assault with intent to inflict great bodily injury, and brings error. Affirmed.

D. C. McKillip and George B. France, for plaintiff in error.

Geo. H. Hastings, for the State.

POST, J.

1. This is a petition in error, and presents for review the judgment of the district court for Seward county, whereby the plaintiff in error was convicted of an assault upon one Oliver with intent to inflict great bodily injury. It is argued, first, that the information charges an assault and battery only, and will not sustain a conviction for an aggravated assault. That contention is based upon the proposition that section 17b of the Criminal Code contemplates an assault with a weapon other than the members of the body. The effect of that section, as held in Smith v. State, 34 Neb. 689, 52 N. W. 572, was to create a new and substantive offense, and, being a purely statutory one, it may be charged in the language of the act. 1 Bish. Cr. Proc. 611, 612. The cases which appear to sustain a different view arose, it is believed, without exception, under statutes in which manner of the assault or the instrument used is included within the definition of the offense. The term “great bodily injury,” as employed in the statute, is perhaps not susceptible of a precise legal definition. It is, however, an injury of a graver and more serious character than an ordinary battery; and whether a particular injury is within the meaning of the statute is generally a question of fact for the jury, and not of law. See State v. Gillett, 56 Iowa, 459, 9 N. W. 362. That a great bodily injury, within the meaning of the statute, may be inflicted without the use of a “dangerous,” or even “offensive,” weapon, is quite apparent from the facts of this case, to which reference will hereafter be made. The objection to the information is therefore without merit.

2. It is next contended that the trial court erred in refusing to exclude the witnesses of the state from the court room during the trial. But while the request is one rarely denied, especially when made by the defendant in a criminal prosecution, it is a subject within the discretion of the trial court, and the refusal in this instance does not appear to have been an unreasonable exercise of that discretion. 1 Greenl. Ev. 432.

3. The state was permitted, over the objection of the accused, to prove by the prosecutor, Oliver, that, in consequence of the injury received on the occasion of the assault charged, his general health was seriously impaired, and that he was still unable to perform manual labor. The evidence was rightly admitted. The extent of the injury inflicted by the accused was a proper subject of inquiry, as bearing upon the question of the intent; and, although the state might perhaps have rested upon proving that the leg of the prosecutor was broken during the assault, there was no error in permitting it to pursue the subject to the extent of showing the permanent effect of the injury. It was, at most, cumulative evidence, and within the discretion of the court.

4. The prosecutor was recalled by the state in rebuttal for the purpose of contradicting certain statements of the accused, and, over the objection of the latter, gave evidence which was a substantial repetition of portions of his testimony given for the state in its case in chief. According to the prevailing rule, the plaintiff should be required to try his case out when he has once begun, and will not be allowed to prove again in rebuttal facts shown in presenting his prima facie case. The court may, however, in its discretion, receive evidence not strictly rebutting, and such an exercise of discretion will not be made the subject of review, except in case of evident abuse. 1 Thomp. Trials, 346. These observations apply as well to the testimony of Joseph Oliver, son of the prosecutor, given in rebuttal.

5. The next assignment relied on is that the verdict is not sustained by the evidence. We learn from the bill of exceptions that on the day in question Mr. Oliver, the prosecutor, drove from his home to the village of Utica, accompanied by his son and his niece, and that after hitching his team at a convenient place he visited the stable kept by the accused, the purpose of his visit being a friendly one, and in no way tending to provoke the assault which followed. He was at once accosted by the accused, and charged with having spoken disparagingly of a horse owned by the latter. Oliver, who appears to have been anxious to avoid an altercation, denied the above charge, when the accused,almost without...