Robinson v. State
| Decision Date | 17 February 1904 |
| Docket Number | 13,528 |
| Citation | 98 N.W. 694,71 Neb. 142 |
| Parties | JAMES ROBINSON v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for McPherson county: HANSON M. GRIMES JUDGE. Affirmed.
AFFIRMED.
Beeler & Muldoon and A. F. Parsons, for plaintiff in error.
Frank N. Prout, Attorney General, Norris Brown and Wilcox & Halligan, contra.
On the 17th day of December, 1902, an information was filed in the district court for McPherson county against James Robinson charging him with murder in the first degree. It was alleged in substance, that on the 20th day of June, 1902, he unlawfully and feloniously, and of his deliberate and premeditated malice, in the county of McPherson, and the state of Nebraska, did shoot and kill one Elmer Thayer. On this charge Robinson was tried, and found guilty of murder in the first degree, the jury fixing the penalty at imprisonment in the penitentiary for life. He thereupon prosecuted error, and will hereafter be called the plaintiff.
His first contention is that the verdict is not sustained by the evidence, because the state failed to prove a motive for the killing. This contention can not be sustained. The law is well settled in this jurisdiction, as well as in others, that, where all of the essential elements of the crime are present, a conviction for murder will stand, even if there be no evidence of motive for its commission. Proof of motive is not necessary to procure a conviction. Maxwell, Criminal Procedure (2d ed.), 208; Schaller v. State, 14 Mo. 502; Crawford v. State, 12 Ga. 142; Sumner v. State, 5 Blackf. (Ind.) 579; People v. Robinson, 1 Park. (N.Y.) 649. Proof of motive, however, is always competent evidence against the accused, and absence of apparent motive may always be shown, and is simply a circumstance for the jury to consider. Where the evidence discloses, as in this case, that the accused shot and killed his victim without apparent cause, and thereafter offered no explanation for his act, a verdict of murder in the first degree should be permitted to stand.
Plaintiff's second contention is, that the court erred in giving instruction numbered 1, requested by counsel for the state. The particular part of the instruction complained of is:
"Still it does not require that the premeditation and deliberation, or the wilful intent and purpose, shall exist for any length of time before the crime is committed."
We have carefully examined the instruction, and find that it is a copy of the one given, and approved by this court, in Carleton v. State, 43 Neb. 373, 61 N.W. 699, and in Savary v. State, 62 Neb. 166, 171, 87 N.W. 34. If the words above quoted were to be considered alone, it would seem that the exception thereto was well taken, but, when they are considered in connection with the other parts of the paragraph complained of, it appears that they are not at all misleading. The substance of the instruction is:
That it is not necessary for the state to prove that the premeditation and deliberation, or the wilful intent and purpose to kill, existed for any particular length of time before the homicide; and the language of the instruction is so plain that there can be no doubt about this. That this is a correct statement of the law there can be no doubt. The principle contained therein is also approved in the case of Clough v. State, 7 Neb. 320. We therefore hold, that the trial court did not err in giving the instruction complained of.
Plaintiff's third contention is, that the court erred in giving instruction numbered 7, on his own motion, because it was a repetition of the instruction above mentioned. In Carstens v. McDonald, 38 Neb. 858, 57 N.W. 757, and in Carleton v. State, 43 Neb. 373, 414, 61 N.W. 699, it was held:
"That a repetition of the same rule will not be ground for a reversal unless its effect was to mislead or confuse the jury."
It is true that, in the case at bar, the court twice stated, in substance, that no particular length of time prior to the act, during which the intention to kill existed and was deliberated upon, need be shown. But, each time, this was stated in connection with a definition of the elements necessary to constitute the crime of murder in the first degree. The necessity of deliberation and premeditation was impressed upon the jury; but it was also stated that it was not necessary to show that such deliberation and premeditation existed any particular length of time before the killing. These instructions did not, in any manner, conflict with each other, and the jury could not have been misled or confused thereby.
The fourth assignment of error relates to the admission of certain evidence; and counsel complain because one of the witnesses was permitted to testify that he heard the defendant say "He had started one graveyard, and could start another." An examination of the record discloses that this testimony was admitted without either objection or exception on the part of the plaintiff, and it further appears that when the court's attention was called to it, by the plaintiff's motion to strike it from the record, the motion was sustained, and the matter withdrawn from the consideration of the jury. It is a familiar and well established rule that, in order to predicate error on the admission of evidence, there must be an objection and exception thereto. But, in any event, the matter, if at all objectionable, was promptly withdrawn from the consideration of the jury, in compliance with the plaintiff's request.
Lastly, plaintiff's counsel insist that, under the information and the proof, the district court for McPherson county was without jurisdiction to try the accused, and pronounce judgment against him. It is claimed that, while the information charges the crime to have been committed in McPherson county, the proof shows that it was committed in the territory defined by the legislature as Arthur county; that, by law, the unorganized territory defined by the legislature as Arthur county is attached to Keith county for election, judicial and revenue purposes, and that therefore the court had no jurisdiction in or over the territory where the crime was committed. This is the most serious question contained in the record, and requires a careful examination of the statutes in order to determine the merits of the contention. Section 146, article 1, chapter 18 of the Compiled Statutes (Annotated Statutes, 4495), provides:
"That all counties which have not been organized in the manner provided by law, or any unorganized territory in the state, shall be attached to the nearest organized county directly east for election, judicial and revenue purposes; Provided, That Sioux county shall be attached to Cheyenne county for all the purposes provided for in this section; Provided further, That if no county lies directly east of such unorganized territory or county, then such unorganized territory or county shall be attached to the county directly south, or if there be no such county, then to the county directly north, and if there be no county directly north, then to the county directly west of such unorganized territory or county."
Section 147 provides: "The county authorities to which any unorganized...
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Hans v. State, 31992.
...with approval from Wever v. State, supra: ‘This court has held in McCormick v. State, 66 Neb. 337, 92 N.W. 606, and Robinson v. State, 71 Neb. 142, 98 N.W. 694, that error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it.’ See, also, ......
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Hans v. State
...quoted with approval from Wever v. State, supra: 'This court has held in McCormick v. State, 66 Neb. 337, 92 N.W. 606, and Robinson v. State, 71 Neb. 142, 98 N.W. 694, error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it.' See, also......