Pembrook v. State

Citation222 N.W. 956,117 Neb. 759
Decision Date10 January 1928
Docket NumberNo. 26389.,26389.
PartiesPEMBROOK v. STATE.
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

To justify a verdict of murder in the first degree, the information must charge, and the evidence must show beyond a reasonable doubt, the killing to have been done purposely, and with deliberate and premeditated malice.

As thus used, “purposely” means intentionally, “deliberate” means maturely reflected, “premeditated” means conceived beforehand, and “malice” means a willful or corrupt intention of the mind.

Instructions 2 and 3 considered, and held to be prejudicially erroneous.

Record examined, and found without evidence to sustain a conviction of murder in either the first or second degree.

Error to District Court, Clay County; Blackledge, Judge.

Herbert T. Pembrook was convicted of murder in the second degree, and he brings error. Reversed and remanded.C. L. Stewart, of Clay Center, and Waring & Waring, of Geneva, for plaintiff in error.

O. S. Spillman, Atty. Gen., and Lloyd Dort, Asst. Atty. Gen., for the State.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, and EBERLY, JJ., and REDICK, District Judge.

THOMPSON, J.

At Harvard, in Clay county, in an altercation between one French and the plaintiff in error, hereinafter called defendant, in which such French was the aggressor, the latter was stabbed several times by defendant with the blade of a small pocket knife, from which wounds French died. An information was filed which, omitting formal parts, charged that: Defendant, unlawfully, feloniously, purposely and of his premeditated malice, stabbed Herbert French with a knife, and as a result thereof he died September 19, 1927. Defendant, Herbert T. Pembrook, thus committed murder in the first degree.” To this information defendant interposed a plea of not guilty. Trial was had, jury instructed as to first and second degree murder, and manslaughter, and defendant found guilty of murder in the second degree and sentenced to imprisonment for twenty years; to reverse which judgment he prosecutes error.

At the threshold of every case stands the question of jurisdiction, which should be first to receive the trial court's consideration. The above indicated three offenses are specifically defined in the Compiled Statutes of Nebraska for 1922, and, so far as material, are as follows:

Section 9544. * * * Whoever shall purposely and of deliberate and premeditated malice * * * kill another, * * * shall be deemed guilty of murder in the first degree.

Section 9545. * * * Whoever shall purposely and maliciously, but without deliberation and premeditation, kill another, * * * shall be deemed guilty of murder in the second degree.

Section 9546. * * * Whoever shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, shall be deemed guilty of manslaughter.”

In these enactments the Legislature was dealing with the most sacred and highly prized rights of mankind--life and liberty. This it must have realized at the time, as by carefully selected words it restricted the application of each quoted statute to those persons coming clearly within its provisions. Hence, in construing such enactments as quoted, each word should be considered as material and permitted its full force and effect.

[1] The unbroken holdings of this court have been that, in charging these crimes, the pleader must follow the words of the above statutes, or use their equivalent. In harmony with this rule, and in furtherance of uniformity and dispatch, in Nichols v. State, 109 Neb. 335, 191 N. W. 333, under a statute authorizing this court to establish rules, we promulgated a plain, succinct form charging murder in the first degree, as a guide to bench and bar. This form was followed in the instant case, except that the words “deliberate and” which appear in such form between the words “of his” and “premeditated” are, as we have seen, omitted.

[3] At the trial the court, in instruction 1, described the charge against the defendant by including therein that part of the information hereinbefore quoted. Instruction 2 informed the jury that--“The charge against the defendant as made in said information covers and includes three different grades or degrees of the offense commonly termed ‘homicide,’ which is the unlawful killing of another person. These degrees are termed, ‘murder in the first degree,’ ‘murder in the second degree,’ and ‘manslaughter.’ And further appearing in such instruction is practically a reiteration of the aforesaid quoted sections. This is followed by the challenged instruction 3, wherein the court undertook to define, for the enlightenment of the jury, the words “purposely,” “deliberate,” “premeditated,” and “malice,” as such words respectively are used in the statutes being considered; and in so doing, as we conclude, informed the jury that--“By the word ‘purposely’ is meant intentionally.” That “deliberate” and “premeditated” “mean substantially the same thing and signify that the act to which they are applied is not suddenly and rashly done but has been planned or thought of beforehand.” And further on in the same instruction informed the jury, “If a person has actually formed the purpose to kill, and has deliberated or premeditated upon it before he performs the act, and then performs it, he is guilty of murder in the first degree however short the time may...

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