Savary v. State

• Decision Date: 19 June 1901
• Citation: 87 N.W. 34,62 Neb. 166
• Parties: SAVARY v. STATE.
• Court: Nebraska Supreme Court

62 Neb. 166

87 N.W. 34

SAVARY

v.STATE.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. In a criminal trial, as well as civil, when to a question in direct examination an 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.

2. When physicians called as experts in a criminal trial for murder, in testifying to the manner and cause of death, refer to and use the skull of the deceased and a photograph thereof in explanation and as a part of their testimony, it is not erroneous to admit the exhibits as evidence in the case.

3. Instructions copied in the opinion, defining murder in the first degree, examined, and held, the giving of the same was not erroneous.

4. When a point arising in a criminal trial has been covered in an instruction to the jury, it is not error to refer to such instruction as answering an inquiry submitted by the jury during their deliberations, in place of giving another instruction on the same point, although another instruction might properly have been given.

5. It is not required that all phases of the case be covered by one instruction. An instruction referring only to murder in the first degree may be given, without objection, when other instructions properly advise the jury as to the lesser degrees of the crime charged in the information, and also the defense interposed by the plea of not guilty.

6. An instruction on the subject of reasonable doubt, in which the jury were told: “You are not at liberty to disbelieve as jurors, if from the evidence you believe as men. Your oath imposes on you no obligation to doubt, when no doubt would exist if no oath had been administered,”-- held not erroneous.

7. An instruction of general application regarding the credibility of witnesses, otherwise proper and correct, is not open to objection because the defendant, who testified in his own behalf, was the only witness having a direct legal interest in the result of the trial.

8. The use of the word “impartial” in an instruction, when applied to the consideration of the evidence by the jury, does not render the instruction erroneous.

9. An instruction, the substance of which is copied in the opinion, requested by the defendant, held properly refused.

10. When one theory of the defense is that the homicide was committed under the impulse of irresistible passion provoked by the deceased, the true inquiry is whether the suspension of reason, if shown to exist, arising from sudden passion, continued from the time of provocation till the instant of the act producing death took place, and if, from the circumstance shown in evidence, it appears that the party reflected and deliberated, or if, in legal presumption, there was time or opportunity for cooling, the provocation cannot be considered by the jury in arriving at a verdict.

11. Evidence examined, and held sufficient to support a verdict of murder in the first degree.

12. Statements of a juror, after trial, as to the manner of arriving at a verdict during deliberations of the jury, cannot be testified to by others for the purpose of vitiating the verdict. Such testimony is incompetent, as hearsay.

13. A statement made by a juror after trial, and when not under oath, tending to impeach his verdict, is insufficient to rebut and overcome the presumption arising from the record that the verdict returned under oath, and assented to by the jury, was the result of the deliberation of the jury on the evidence in the case.

14. A juror cannot be heard to impeach a verdict by him returned as to any matter essentially inhering in such verdict.

Error to district court, Richardson county; Stull, Judge.

Hubbard Savary was convicted of murder in the first degree, and he brings error. Affirmed.

C. Gillespie and E. Falloon, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

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 proceedings 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, an 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, 64 N. W. 1082;Mathews v. State, 19 Neb. 330, 27 N. W. 234;Denise v. City of Omaha, 49 Neb. 750, 69 N. W. 119;Murry v. Hennessey, 48 Neb. 608, 67 N. W. 470;Smith v. Hitchcock, 38 Neb. 104, 56 N. W. 791;Insurance Co. v. Hyman, 34 Neb. 704, 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 urged that the instructions fail to distinguish between murder in the first and second degrees, 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 degrees.” It is earnestly insisted...