Runyan v. State

• Citation: 216 N.W. 656,116 Neb. 191
• Decision Date: 28 November 1927
• Docket Number: 25932
• Parties: C. H. RUNYAN v. STATE OF NEBRASKA
• Court: Supreme Court of Nebraska

216 N.W. 656

116 Neb. 191

C. H. RUNYAN v. STATE OF NEBRASKA

No. 25932

Supreme Court of Nebraska

November 28, 1927

ERROR to the district court for Lincoln county: J. LEONARD TEWELL JUDGE. Reversed.

REVERSED.

Hoagland Carr & Beck and Brown & Dibble, for plaintiff in error.

O. S Spillman, Attorney General, and Lloyd Dort, contra.

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

OPINION

GOSS, C. J.

Defendant prosecutes error from a conviction for manslaughter for which he was sentenced to a term of seven years in the penitentiary. The amended information is in two counts. The first count charges the defendant, Runyan, in conventional terms, as a principal, with second degree murder of John Harold Sollars, by shooting him. The second count charges that one Harry Johnson, purposely and maliciously, but without deliberation and premeditation, shot and killed Sollars with a rifle, thus committing murder in the second degree, and that Runyan was present, unlawfully, purposely and maliciously aiding and abetting Johnson in the commission of the murder. The second count was authorized by section 9541, Comp. St. 1922, as amended by chapter 89, Laws 1923, which reads: "Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender." Throughout the trial, and in the instructions to the jury, the two counts were treated as if each charged the defendant as a principal, and, taken together, "as charging but one offense, as though both were included in one count." The defendant moved to require the state to elect on which count it would prosecute. This motion was overruled and no error has been argued in the briefs on this account. This is mentioned, and the counts of the information have been described, because of a certain bearing they will have on a later discussion of error relied on by the plaintiff in error.

The act resulting in this deplorable tragedy occurred in the country north of, but not far from, the city of North Platte, on the night of May 13, 1926. Those present were the defendant, who was an undercover man employed and paid by the city to aid in matters of violation of laws relating to intoxicating liquors, two police officers of the city, a railroad special officer, who was also a deputy sheriff, and Harry Johnson, who was not an officer. In the afternoon of that day, Runyan and Hedrick, one of the officers, had gone out and seized a car, transporting liquor in this neighborhood. While taking it into the city they heard that another car, a Ford sedan or coupe, carrying liquor, was coming in from the north. On reporting to the chief of police, they were instructed to seize it. On the way out they discussed the need of more help and Hedrick telephoned for it. Greene, the other police officer, and Frahm, the deputy sheriff, came. On their way, Runyan and Hedrick picked up Harry Johnson, who was an acquaintance of Runyan, and who took them in his car. He took along his sporting rifle. The three drove to the neighborhood where the contraband car was expected and parked Johnson and his car in a gateway. As cars would approach, Runyan and Hedrick would walk forward and flag the cars and Johnson would drive his car into the roadway so as to block it. After stopping several cars in this way, the three went over to another point where Greene and Frahm were operating at the intersection of two roads. Frahm parked his car, facing south, on the east side of a north and south road, and Johnson's car was on the south side of the east and west road, but turned toward the other car, so as to leave from eight to twelve feet for a car to pass on the roadway between them. About the time these positions were taken, a car approached. Johnson remained in his car, but the other four were on the ground as a car approached, which later proved to be a Maxwell coupe with Harry Sollars and a young lady in it. The testimony shows that they were estimable young people who lived in North Platte and who were out for an innocent evening ride. Greene signalled with his flashlight for the car to stop. It slowed down, coming practically to a stop. Runyan stepped forward accosted the occupants, and expressed a desire to look the car over. Sollars suddenly applied the gas, the car shot forward. Runyan said, "'Stop him,' or something to that effect," and fired two shots with his revolver, one at the left rear tire, striking the left fender, and one at the gas tank, striking above it. Greene and Hedrick did not shoot. Frahm fired his gun off in the air, not at the car. When Sollars had driven a few hundred feet, Johnson shot at his car. There is testimony that Runyan rebuked Johnson for firing with his rifle, and that shortly thereafter the fleeing car began to wobble. When the last shot was fired by Runyan, the car was not over 25 feet from him. It was conceded by the state that neither of these shots by Runyan...