Peyton v. State

• Decision Date: 17 March 1898
• Docket Number: 9852
• Parties: FRANK PEYTON ET AL. v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

74 N.W. 597

54 Neb. 188

FRANK PEYTON ET AL. v. STATE OF NEBRASKA

No. 9852

Supreme Court of Nebraska

March 17, 1898

ERROR to the district court for Douglas county. Tried below before BAKER, J. Reversed.

REVERSED AND REMANDED.

T. J Mahoney and Duffie & Van Dusen, for plaintiffs in error.

C. J Smyth, Attorney General, and Ed. P. Smith, Deputy Attorney General, for the state.

OPINION

HARRISON, C. J.

In an information filed in the district court of Douglas county the plaintiffs in error were charged in a first count thereof with the crime of shooting a designated person with an intent to kill him; in a second count, with shooting said person with an intent to wound him. On arraignment each pleaded not guilty. A trial of the issues resulted in a conviction of plaintiffs in error of the commission of the crime charged in the second count of the information, and subsequently each was sentenced to imprisonment in the penitentiary for a period of four years. Of the proceedings during the trial a review on behalf of the convicted parties is the object of the error proceeding in this court.

Of the defenses interposed for plaintiffs in error in the trial court was that of an alibi. Testimony was introduced which tended to establish that at the time the crime was committed, with the perpetration of which plaintiffs in error were charged, they were at home, not present at the scene of such crime, and could not have been. In its charge to the jury the trial court gave an instruction, numbered 6, on the subject of the defense, to which we have just referred, which instruction was in the following terms: "The defendants claim as a part of their defense what is known as an alibi; that is, at the time the crime with which they stand charged was being committed they were at such a distance and different place that they could not have participated in its commission. The defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused were at another place, so far away and under such circumstances that they could not, with ordinary exertion, have reached the place where the crime was committed. Proof of an alibi must be sufficient to raise in you minds a reasonable doubt of the defendant's presence at the time and place of the commission of the crime charged." This, it is insisted, was erroneous and prejudicial to the rights of the parties on trial, in that it embodied an incorrect definition of the defense relative to which it was framed and read for the information of the jury.

An alibi in criminal law is defined in Black's Law Dictionary as follows: "Elsewhere; in another place. A term used to express that mode of defense to a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime with which he is charged, offers evidence to show that he was in another place at the time; which is termed setting up an alibi." And in 2 Am. & Eng. Ency. Law [2d ed.] 53, "The word 'alibi' means, literally, 'elsewhere,' and a prisoner or accused person is said to set up an alibi when he alleges that, at the time when the offense with which he is charged was committed, he was 'elsewhere'; that is in a place different from that in which it was committed." The trial court made use of the words "at such distance and different place that they could not have participated in" the commission of the crime in defining an alibi. The expression as to the element of distance was an incorrect one. That parties charged with acts constituting a crime were at a place other than that of the alleged acts embraces necessarily as elemental of its existence as a fact that they were also at some distance from the alleged place of the commitment of the crime. But that the distance disclosed by the evidence be long or short is not always an absolutely controlling fact. It can do no more than to lend greater or lesser countenance and force to the defense in a degree proportionate to its extent. That the distance must be such as to preclude any possibility of a participation in the crime as was expressed in...