Rhea v. State

• Decision Date: 02 April 1902
• Citation: 97 N.W. 1070,64 Neb. 889
• Parties: RHEA v. STATE
• Court: Nebraska Supreme Court

97 N.W. 1070

64 Neb. 889

RHEA v. STATE

Supreme Court of Nebraska

April 2, 1902

OPINION

SEDGWICK, J. dissenting.

The trial court instructed the jury that the unintentional and accidental killing of a human being is murder in the first degree if at the time of the killing the defendant was engaged in attempting to perpetrate a robbery upon the person of the deceased. ^[*] This was the rule of the common law. And many of the states have adopted it by statute. Many of the severe rules of the common law have been modified by our statutes upon the theory that crimes are not prevented by too severe penalties. Some of the states have refused to legalize the taking of human life as a punishment for crime. The tendency has been, and is, toward the adoption of more humane rather than more severe penalties. We have no common-law crimes in our state. No man can be punished for crime except in pursuance of a plain statute defining the crime and providing for the punishment.

The language of the statute construed by the instruction referred to is: "If any person shall purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery or burglary, or by administering poison, or causing the same to be done, kill another, * * * every person so offending shall be deemed guilty of murder in the first degree," and the instruction is predicated upon the construction of this statute in Morgan v. State, 51 Neb. 672, 71 N.W 788.

My mind refuses to so construe the statute. The words "in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary" have the same relation to the word "purposely," and to all other parts of the section, that the words "by administering poison or causing the same to be done" have.

My attention has been called to the decisions of three states besides our own which have a statute like ours. We seem to have borrowed our statute from Ohio, and they have the same statute in Oregon and Indiana.

In the case of Bechtelheimer v. State, 54 Ind. 128, 136, it was held that a purpose to kill was necessary to constitute murder where the killing was effected by the administration of poison. The court said: "If no purpose to kill is necessary to constitute murder, where the killing is brought about by administering poison, then the most innocent act of one's life may turn out to be a murder, and that too in the first degree, subjecting him to the gallows or imprisonment for life. If a purpose to kill is not necessary, then the man is a murderer, who innocently administers what he supposes to be a proper dose of medicine, but which turns out to be a poison which kills the party taking it."

In Moynihan v. State, 70 Ind. 126, 130, the above language is quoted and the court further said: "By the innocent administration of poison no penal law is violated, no moral turpitude is shown. To hang a man for such a mistake, or incarcerate him for life, is a barbarity not inflicted by the law of any civilized and enlightened people."

But in the latter case the statute is construed to mean that if the killing is done in attempting to commit robbery it is not necessary to show any intention to kill. To my mind these cases seem inconsistent with each other, and they certainly are so, unless the legislature is without power to make the killing of a human being by administering poison constitute murder when not done with the purpose of killing. That the statute makes the same provision in precisely the same words in regard to killing while attempting to perpetrate a robbery can not be questioned, so that if no purpose to kill is necessary in one case to constitute the crime of murder it certainly can not be in the other, unless it is not competent for the legislature to so provide in the one case, but is competent in the other. But if the legislature could not make the killing by poison, without the purpose to kill, murder, why charge it with an attempt to do so when the statute is susceptible of another meaning? Not long ago by English law a man was hanged for murder if he, being engaged in any unlawful act, accidently killed a human being. The legislature has abandoned that rule, and it is not unreasonable to suppose that it was the intention of the legislature that no one should be hanged for murder unless he did the killing purposely as it is to suppose that it was intended that one who caused death by honest mistake in the giving of a supposed medicine should be guilty of murder. If this statute does not make the accidental killing of a person by administering poison murder in the first degree, then, by the same construction, a homicide committed in the perpetration of robbery is not murder in the first degree unless the killing was purposely done.

Our statute was borrowed from Ohio and had been construed by the courts of that state several times before its adoption here.

In Morgan v. State, 51 Neb. 672, 693, 71 N.W. 788, it is said: "There exists, notwithstanding the many adjudications in point, some diversity of opinion respecting the effect of constructions placed upon statutes previous to their adoption in other jurisdictions. Such a construction, it is sometimes said, becomes, upon the enactment of the statute by another state, an integral part of the act itself, having the force and effect of a legislative command. However, the more rational view, and the one sanctioned by authority, is that, except as applied to English statutes in force in this country at the time of the war of the revolution, the effect of such previous constructions is the same as of decisions by courts of last resort having jurisdiction of the particular controversy. Cathcart v. Robinson, 5 Pet. [U.S.] 264. The Ohio case must, therefore, be regarded as a construction of the statute, to be ignored or rejected only for reasons which would require the overruling thereof had the decision been pronounced by this court, and in that light it will now be examined."

In Cathcart v. Robinson, which is cited as authority for this doctrine, it is said: "The rule which has been uniformly observed by this court in construing statutes, is to adopt the construction made by the courts of the country by whose legislature the statute was enacted; this rule may be susceptible of some modification, when applied to British statutes which are adopted in many of these states; by adopting them they become our own, as entirely as if they had been enacted by the legislature of the state. The received construction in England, at the time they are admitted to operate in this country, indeed, to the time of our separation from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however we may respect subsequent decisions, and, certainly, they are entitled to great respect, we do not...