Savary v. State

Decision Date19 June 1901
Docket Number11,866
Citation87 N.W. 34,62 Neb. 166
PartiesHUBBARD SAVARY v. STATE OF NEBRASKA
CourtNebraska Supreme Court

ERROR from the district court for Richardson county. Tried below before STULL, J. Affirmed.

AFFIRMED.

Clarence Gillespie and Edwin Falloon, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, Deputy, for the state.

OPINION

HOLCOMB, J.

The defendant, plaintiff in error, was informed against, tried and by a jury found guilty of murder in the first degree, the penalty being fixed at life imprisonment. Sentence having been duly pronounced on the verdict, the cause is by proceeding in error brought to this court for review. The errors assigned and argued as grounds for a reversal of the judgment of the trial court may, for convenience, be grouped and considered in the following order: 1. Errors in the admission and rejection of evidence. 2. Errors in the instructions to the jury given and refused. 3. The evidence does not sustain the verdict. 4. Misconduct of the jury during their deliberations in arriving at a verdict.

As to the first of the grounds mentioned, complaint is made because the court, during the examination in chief of the defendant who was a witness in his own behalf, sustained an objection interposed by the state to a question by which he was asked the reason why he struck the deceased at the time of the homicide. As no offer was made as to what the witness would testify in answer to the question, we are unable to say there is prejudicial error in the ruling complained of. The rule is, and it is applicable alike to criminal and civil trials, that when to a question in direct examination objection is interposed by the adverse party and sustained, in order to present the ruling to this court for review, there must be an offer of proof of the facts sought to be put in evidence by the question to which the answer was excluded. Ford v. State, 46 Neb. 390, 394, 64 N.W. 1082; Mathews v. State, 19 Neb. 330, 338, 27 N.W. 234; Denise v. City of Omaha, 49 Neb. 750, 69 N.W. 119; Murry v. Hennessey, 48 Neb. 608, 613, 67 N.W. 470; Smith v. Hitchcock, 38 Neb. 104, 110, 56 N.W. 791; German Ins. Co. v. Hyman, 34 Neb. 704, 709, 52 N.W. 401.

Complaint is also made because, over the objection of the defendant, the trial court admitted in evidence as exhibits the skull of the deceased and a photograph thereof. An examination of the records discloses that these exhibits were referred to and made use of by the physicians testifying in the case as to the manner and cause of death, and were in fact a part of the evidence of these witnesses proper and necessary to an intelligent understanding of the testimony relating to and bearing on the subject concerning which the witnesses as experts were called to testify. We find no valid objection to the introduction of the exhibits as evidence in connection with the physicians' testimony as to the manner and cause of death, and regard them as entirely competent in establishing a material element in the state's case, viz., that the blow delivered by the defendant to the deceased was the direct and proximate cause of his death. Counsel has cited no authority holding the evidence inadmissible, nor is it believed that any can be found.

With scarcely an exception, all the instructions given the jury at the request of the state are excepted to, and the giving of each is assigned as sufficient reason for the reversal of the judgment. All instructions were given either at the request of the prosecution or the defense, and we think, upon the whole, covered the issues raised in the case in a very satisfactory manner and fairly submitted the law applicable to the evidence, for the guidance of the jury in their deliberations.

Instructions 1 and 2, requested by the state and given, are vigorously assailed as an incorrect expression of the law defining murder in the first degree. They are as follows:

"1. To constitute murder in the first degree there must have been an unlawful killing done, purposely, and with deliberate and premeditated malice. If a person has actually formed the purpose maliciously to kill, and has deliberated and premeditated upon it before he performs the act, and then performs it, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference between murder in the first degree and murder in the second degree; an unlawful killing, with malice, deliberation and premeditation constitutes the crime of murder in the first degree. It matters not how short the time, if the party has turned it over in his mind, and weighed and deliberated upon it.

"2. The jury are instructed that while the law requires in order to constitute murder of the first degree, that the killing shall be willful, deliberate and premeditated, still, it does not require that the willful intent, premeditation or deliberation, shall exist for any length of time before the crime is committed; it is sufficient if there was a design and determination to kill distinctly formed in the mind at any moment before or at the time the blow is struck; and in this case, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant feloniously struck and killed the deceased, as charged in the information, and that before or at the time the blow was struck the defendant had formed in his mind a willful, deliberate and premeditated design or purpose to take the life of the deceased, and that the blow was struck in furtherance of that design or purpose and without any justifiable cause or legal excuse therefor, as explained in these instructions, the jury should find the defendant guilty of murder in the first degree."

It is argued that the instructions fail to distinguish between murder in the first and second degree and eliminate the elements of premeditation and deliberation. We are unable to so conclude. The instructions are substantially the same as those given in Carleton v. State, 43 Neb. 373, 61 N.W. 699, which were approved in an opinion of the court by IRVINE, C. In the first it is said, it is true, that "It is not time that constitutes the distinction between murder in the first and second degree." It is earnestly insisted that time is required for premeditation and deliberation. While this is true, the time required may be of the shortest possible duration. The time may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed, and this is the substance of the instructions complained of. Whether the defendant had sufficient time to premeditate and deliberate, and whether he in fact did so, was a question for the jury as triers of fact under proper instructions from the court. From an examination of both instructions it can not be said that the purpose to kill could be formed, reflected upon and turned over in the mind and the act committed at one and the same time. To constitute the crime of murder in the highest degree there must be a reflection, a turning over in the mind, a weighing and consideration of the act and the purpose formed to do it before its actual commission. The instruction could perhaps be improved and save criticism by the most exacting, by the use of language entirely free from ambiguity, fixing the time for premeditation and deliberation, even though instantaneous it may be, before the actual commission of the act on which the charge of the crime is based. In the first paragraph it is stated, in a manner leaving no room for doubt or uncertainty, that premeditation and deliberation must precede the act resulting in death; that if the party has turned the question over in his mind, weighed and deliberated upon it, it matters not how short the time. The correctness of the instruction as a legal proposition can not be questioned. In the second the jury are told that if before or at the time the blow was struck the defendant had formed in his mind a willful, deliberate and premeditated design or purpose to take the life of the deceased, and that the blow was struck in furtherance of that design, without any justifiable cause or legal excuse, his guilt of the highest degree of the crime charged would be established. It can hardly be argued, by any logical process of reasoning, that under this instruction a verdict of guilty of murder in the first degree would be justified upon the theory that the premeditation and deliberation required to be shown and the act of killing may take place simultaneously. Clearly, deliberate and premeditated malice must be found to exist before the blow was struck resulting in death.

In 1 Wharton, Criminal Law [10th ed.], section 380, it is stated: "It is not necessary, however, that this intention should have been conceived for any particular period of time. [Citing a long list of authorities.] It is as much premeditation if it entered the mind of the guilty agent a moment before the act, as if it entered ten years before;"--citing other cases. In Haunstein v State, 31 Neb. 112, it is held in the third paragraph of the syllabus: "To warrant a conviction of murder in the first degree it is not necessary that the evidence show that the accused deliberated over the matter and formed the purpose to kill, for weeks, days, or hours before committing the crime. The law fixes no particular length of time for premeditation and deliberation as the criterion to distinguish murder in the first from the lower degree thereof, but leaves each case to be determined from the circumstances surrounding it." In paragraph sixteen of the syllabus in Carleton v. State, supra, the law is thus stated: "Where a...

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