Parrish v. State

• Decision Date: 23 March 1883
• Citation: 15 N.W. 357,14 Neb. 60
• Parties: HENRY PARRISH, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 357

14 Neb. 60

HENRY PARRISH, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 23, 1883

ERROR to the district court of Johnson county. Tried below before WEAVER, J.

AFFIRMED.

Appleget & Son and Pinero and Selby, for plaintiff in error.

On refusal to give ninth instruction asked for, cited: State v. Crotean, 24 Ver., 14. 4 Broom & Hadley's Com 631. Fisher v. The People, 23 Ill. 294. Nelson v. The State, 2 Swan, 237. Falk v. The People, 43 Ill. 331. Wharton's Crim. Practice, sec. 711. On refusal to give fifth instruction asked for, cited Lyons v. The People, 68 Ill. 271. Seventh instruction given by court was erroneous. Wharton's Ev., secs. 716, 734. Court's ninth instruction was misleading. 2 Whart. Crim Law, secs. 1019-1021.

C. J Dilworth, Attorney General, for the state, cited Olive v. The State, 11 Neb. 1.

OPINION

LAKE, CH. J.

It is not claimed by the prisoner's counsel that the evidence was not ample to support a conviction. The only errors alleged relate to the charge given to the jury.

First. The refusal of the judge to give three of the instructions, the fifth, ninth, and tenth, requested for the accused.

Second. The giving of the seventh, ninth, tenth, and eleventh, on the judge's own motion; and

Third. The giving of the fifth, seventh, ninth, and tenth of those requested by the prosecution.

Of the fifth instruction, requested on behalf of the prisoner, all we care to say is, that its substance--in fact all of it except the sentimental aphorism found in some of the works on criminal law, "that it were better that ninety and nine, or any indefinite number of guilty persons, should escape, than that one innocent man should be convicted"--was all included in the instructions which were given, and a repetition was unnecessary. The criminal law abounds in such maxims equally as applicable as this, and they are usually sufficiently indulged in, and made prominent in the arguments of counsel, without reinforcement by the judge's charge. What the policy of the law is respecting the punishment of criminals, the judge ought to inform himself, and is expected to know and properly apply; but it is not essential to the ends of justice that on all occasions he should rehearse it to juries. To quote extensively in a charge the sayings of law writers, although they may be entirely correct in principle, not unfrequently tends rather to confuse than to enlighten jurymen. Instructions ought to be as few as practicable, in view of the evidence; couched in plain simple language, addressed as they usually are to common understandings; and where they are, and conform to the principles and policy of the law, it is enough. Every step taken by the judge beyond this can do no good, but may do positive harm.

The ninth instruction requested for the prisoner was rightly refused. It was to the effect that the jury were at liberty to disregard the charge if they believed the law different from what the judge had stated it to be. Such, fortunately, is not the rule here, notwithstanding it is so held in some of the states by force of peculiar statutes on the subject. Doubtless a juror has the power to disregard the law as given by the judge, but he has neither a legal nor moral right, and violates his oath to do so. Besides, how exceedingly farcical the spectacle of a judge saying to a jury "the law of the case is as I have charged; that is the criterion by which the parties have the right to be judged, but if you think otherwise, why you may hold it to be as you like."

With such the rule, must not the administration of justice rest on a very uncertain and insecure basis? What is held to be the law in one case upon a given state of facts very likely may not be enforced as the law in another case when the facts are not materially different. And then, too, when the determination of the law of a case is left to the whims and caprices of jurymen, there is no way of knowing with certainty what they have held it to be. And thus the door is opened to the worst of abuses, without the means of locating and remedying the wrongs which are at hand where it is made certain by being embodied in a written charge of the judge.

The third request refused was that, "If the jury believe from the evidence that, but for the bleeding and trephining of Elmer Parker, he would have recovered from the wound inflicted by the prisoner, then the jury must acquit the prisoner." As a proposition of law this is doubtless correct. If it were found that the wound was not mortal [14 Neb. 64] --that the death of the deceased was occasioned by the surgical operation--the prisoner was certainly entitled to an acquittal. The trouble with this instruction is, however, that the evidence did not call for its application. The united testimony of all the medical experts who gave opinions on this subject was that they considered the wound itself mortal, and that the deceased died of it. Not one of them expressed the belief that death was occasioned, or even hastened, by the surgical treatment.

Dr. Lyle, a physician of over twenty years' practice, was present when the injury was inflicted upon the deceased. In answer to--"What caused his death?" said, "I think the stone crushed the brain, and produced infusion in the brain. When we took out a piece of the skull, there was two or three ounces of blood came out, showing infusion on the brain."

Dr. Thurber was present soon after the injury; found the patient unconscious, and was of opinion he "was going to die," and that nothing could be done only to get him in an easy position and let him remain so. The breathing was "heavy and stertorous." Thought he would not have trephined him, "because it could do no good."

Dr Chubbuck swore that he "found a fracture of the right parietal bone, with undoubted evidence of infusion of blood, and separation of the coronal suture." The pulse "was very irregular, sometimes running, as I now recollect, to perhaps ninety and one hundred, then again dropping down to thirty-five. " As to the trephining, he said that, although consenting...