Sall v. State

• Citation: 157 Neb. 688,61 N.W.2d 256
• Decision Date: 04 December 1953
• Docket Number: No. 33347,33347
• Parties: SALL v. STATE.
• Court: Supreme Court of Nebraska

Page 256

61 N.W.2d 256

157 Neb. 688

SALL v. STATE.

No. 33347.

Supreme Court of Nebraska.

Dec. 4, 1953.

Syllabus by the Court.

1. The credibility of witnesses and the weight of the evidence are for the jury to determine in a criminal case and the conclusion of the jury may not be disturbed by this court unless it is clearly wrong.

2. Direct evidence of intent to commit a crime is not required. It may be established by circumstances.

3. In criminal law, 'malice' may denote that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.

4. An instruction in a criminal case is not required to contain the exact language of the statute, if words equivalent in meaning are used in defining the offense or the elements of the case that the State must establish to justify conviction of the accused.

5. It is a general rule that, on the trial of one accused of crime, proof of a distinct and independent offense, of similar nature, is inadmissible. To this rule there are exceptions, but in order for evidence of an independent offense to be admissible it must appear that it is within one of the recognized exceptions.

6. Evidence of another crime, similar to that charged, is relevant and admissible if it tends to prove a particular criminal intent which is necessary to constitute the crime charged.

7. Whether the previous offense is too remote or whether it is sufficiently similar to the charge on trial is committed to the discretion of the trial court.

8. The Supreme Court has authority to reduce a sentence imposed by the district court for the commission of a crime but it will not often do so if the crime involves violence and moral turpitude.

9. If the punishment of an offense is left to the discretion of the trial court to be exercised within prescribed limits, a sentence within those limits will not be disturbed in the absence of an abuse of such discretion.

William A. Stewart, Lexington, Keith Windrum, Gothenburg, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The plaintiff in error was charged with, tried for, and convicted of the crime of mayhem. His motion for new trial was denied and he was adjudged to be confined in the State Penitentiary. He has brought the record of the case here for review.

The sufficiency of the evidence to sustain the verdict of guilt is challenged by the plaintiff in error, hereinafter identified as defendant. The occurrence resulting in this prosecution took place in Gothenburg between the hours of 5 and 6:30 p. m. on September 25, 1952. It was a day of celebration and the last day of the fall festival in that city. A rodeo was the afternoon attraction. When it was finished many of the persons attending the festival visited the saloons or beer taverns of the city, one of which was 'Bert and Earls.' The length of the pause at the bar by many of the customers was brief, a matter of minutes, but for some it was much longer and lasted hours. The tavern, frequently referred to in the record as Bert and Earl's, had its front on the north side of U. S. Highway No. 30, a bar on the west side, and customers' booths on the east side. There was a door on the front or south and a door on the north or rear. The room was about 60 feet in length. There was a space between the north end of the building and the alley used for loading, unloading, and other purposes in the conduct of the business. This place of business, hereinafter designated as the tavern, and the space to the rear of it was the location of the unfortunate acts resulting in this litigation.

Arthur S. Houchin, prosecuting witness and victim of the injury complained of, entered the tavern with his father, James Houchin, between 5 and 6 p. m. and occupied the rear booth with Henry Derra and three or four other persons. The defendant, his wife, and other persons were in a booth towards the front. About 6 p. m. the defendant accompanied his wife to the rear of the tavern where she visited the ladies' rest room. The defendant stopped at the rear booth and talked with Henry Derra. He permitted the lighted cigarette he had in his hand to come in contact with and to burn James Houchin on the right wrist twice. The second time Houchin said to the defendant "watch your cigarette," and the defendant said "do you want to make something out of it," grabbed Houchin by his clothing near his throat, and hauled him out of the booth. They wrestled but no blows were struck. There were vulgar name-calling and profane epithets voiced. Arthur Houchin interfered with the defendant and his shirt was considerably torn. The intercession of persons, including a bartender, prevented further combat at that time. The parties returned to and again occupied their respective booths and resumed beer drinking.

The elder Mr. Houchin and a Mr. Chapin, who had just then entered the tavern, went out the front door. Mr. Houchin noticed that his son had not followed or joined them. He started back to get his son and met the defendant near the doorway. He cursed and attempted to attack Mr. Houchin but was prevented by the bartender and Mr. Chapin. Mr. Chapin and Mr. Houchin returned to and remained in the rear booth they had occupied. Arthur Houchin and Mr. Derra had remained there.

The defendant, his wife, and two rodeo performers went to the home of defendant and he there discarded his torn shirt and put on another. They returned to the tavern. The defendant entered alone by the rear door, went to the booth where Arthur Houchin, sometimes called Dude, was and said that he wanted 'Dude to come out and settle it.' He told defendant he had nothing to settle and did not want any trouble. A bartender escorted defendant from the booth. The defendant was asked at the trial the meaning of his request that Arthur Houchin 'come out and settle it' and his answer was 'There's my exhibit (indicating his torn shirt); you don't allow people to tear your shirt off and walk away from it.'

The elder Mr. Houchin had been told by someone that there was going to be trouble before he and his son could get away. He bought two bottles of beer, put one in his pocket, gave one to his son, and made the statement that there might be some trouble there that evening. About 30 minutes after the defendant had challenged Arthur Houchin to 'come out and settle it' Chapin and the Houchins left the tavern by the rear door. Gail McKim was in a booth towards the front with the defendant, his wife, Aaron Lee Olson, and two cowboys. McKim testified that he 'understood there was to be a fight,' and that the wife of the defendant got up and said 'there they go." The defendant and Aaron Lee Olson left the booth and in a 'good, fast walk' went to the rear of the tavern and out behind.

About the time Chapin and the Houchins were going through the back door the defendant called out "here I am." Mr. Chapin looked around and saw the defendant and Olson coming 'plenty fast.' The defendant proceeded toward Arthur Houchin and Olson grabbed James Houchin. He hit Olson on the head with a bottle of beer and Olson knocked him down. They had a bloody fight. Mr. Chapin grabbed the defendant and called to the Houchins to hurry away from there. The defendant was trying to contact Arthur Houchin. Mr. Chapin held defendant about 30 seconds until someone hit Chapin across the back of the head, knocked him down, and rendered him unconscious for a time. The defendant then attacked Arthur Houchin and they fought for a brief time. They were on the ground. Defendant was on top. Arthur Houchin felt defendant injure his left ear, and at about the same time he got the bottle of beer out of his hip pocket and struck the defendant across the back and somewhat to the side of his head. Arthur Houchin called for someone to take defendant off of him and that was done. When Arthur Houchin got to his feet he cried out that the defendant "* * * tore my ear off." When the defendant approached Arthur Houchin he was not in usual fighting form but had his arms apart as if to take him in his arms. That is what he did and they went to the ground. After the fight defendant had blood upon his face and lips and was seen to spit when he got off of his victim. The left ear of Arthur Houchin was bit and torn off and he bled profusely. The defendant claimed he was rendered unconscious by the blow on his head and that he had not bit Arthur Houchin before he had passed out. After the fight, but before the defendant left the place of the encounter, his wife said to him "that Kid's lost an ear," and the defendant exclaimed "Oh, my God." He was asked at the trial if he bit off the left ear of Arthur Houchin and he gave this equivocal answer, 'Not that I know of * * * not that I can remember.' His wife also said that when Arthur Houchin asked someone to get the defendant off of him that 'Bob came right off,' and that the fight lasted just a few seconds.

Police officers of the city went to the place pointed out to them as the location where the fight took place within about an hour of the time of the fight and found a human ear that had been recently removed from some person. It had marks on it that could have been made by the teeth of a human being.

The defendant and Lloyd Peterson had a fight on November 14, 1946. Defendant made no effort to hit Peterson but went down under his arms, grabbed him around the waist, and bit him on one of his ribs. Peterson put his arm around the neck of defendant. He bit the arm about four times and the marks he made on it were visible for about two months. Defendant and Gail McKim had a fight during the year 1947. McKim was grabbed by defendant and taken into his arms. They went to the ground, rolled, and wrestled, and when it was over McKim had been injured on the chest and...