Simmerman v. State

• Decision Date: 12 October 1883
• Citation: 14 Neb. 568,17 N.W. 115
• Parties: SIMMERMAN v. STATE.
• Court: Nebraska Supreme Court

14 Neb. 568

17 N.W. 115

SIMMERMAN

v.STATE.

Supreme Court of Nebraska.

Filed October 12, 1883.

Error from Kearney county.

L. C. Burr, for plaintiff.

The Attorney General, for defendant.

LAKE, C. J.

The most important objection made to the conviction of the prisoner, and the only one made in the motion for a new trial, is that the verdict is not supported by the evidence, and to this we shall chiefly direct our attention. The conviction was of murder in the first degree, the punishment of which is death. To have justified such a verdict, the evidence should have been sufficient to show that the act of killing was done not only “purposely,” but also with “deliberate and premeditated malice.” If the evidence fell short of this,--if it were only sufficient to show, at most, the act to have been done “purposely and maliciously, but without deliberation and premeditation,”--the conviction should not have exceeded murder in the second degree; the punishment for which is imprisonment in the penitentiary not less than 10 years, or during life, in the discretion of the court. Crim. Code, §§ 3, 4; Milton v. State, 6 Neb. 136;Schlencker v. Same, 9 Neb. 241; [S. C. 1 N. W. REP. 857.]

That the killing was malicious, without qualification, is possibly reasonably inferable from the manner of doing it, together with the fact that the provocation may have been inconsiderable. Malice is presumed when no considerable provocation appears. Preuit v. People, 5 Neb. 377. But as to the other essentials of murder in the first degree, we are, after a careful examination of the evidence, constrained to say that they were not proved.

In construing a statute the language employed in it should generally be given its plain, obvious import. Follner v. Nuckolls Co. 6 Neb. 204;10 Amer. Law Reg. 537; 1 Broom & H. Comm. (Amer. Ed.) 70. In view of this rule, what is to be understood by the term “deliberation and premeditation,” in the statutory definition of the different degrees of homicide? According to Webster, deliberation means “the act of deliberating, or of weighing and examining the reasons for and against a choice or measure; mature reflection;” and premeditation, “(1) the act of meditating beforehand; previvious deliberation; (2) previous contrivance or design formed,” etc. “Premeditation differs essentially from will, * * * because it supposes, besides an actual will, a deliberation and continued persistence which indicate more perversity.” Bouvier. One eminent author says of the statutory rule of premeditation and deliberation that it requires the act to have been “done with reflection,” and “conceived beforehand.” Whart. Hom. § 180*.

The authorities are conflicting as to the time that is requisite, before the act of killing, for the exercise of these operations of the mind. All agree, however, that some time for deliberate reflection is necessary. This being so, it seems to follow necessarily that where, as was the case here, the killing is the result of a sudden affray between parties before entirely unknown to each other, following quickly its commencement, and the person killed, without cause, began or provoked it, it cannot be said there was time for such reflection as the law contemplates. If this be not a correct view of the force of the term “deliberation and premeditation,” then there is really no substantial distinction between the two degrees of murder. Speaking on this subject, the supreme court of Kansas has said: “The word ‘deliberate’ means that the manner of the performance was determined upon after examination and reflection; that the consequences, chances, and means were weighed and carefully considered. It is not only necessary that the accused shall plan, contrive, and scheme as to the means and manner of the commission of the deed, but that he shall consider different means of accomplishing the act.” Craft v. State, 3 Kan. 450. The last clause of this quotation, perhaps, goes too far in holding that it is necessary for the accused to have “considered different means” for the accomplishment of his purpose to kill. In all else, however, we regard the view thus expressed as sound. See, also, Ake v. State, 30 Tex. 466;Anderson v. Same, 31 Tex. 440;Milton v. State, 6 Neb. 136.

Referring to the evidence, we find that the crime of which the prisoner was convicted was committed on the sixteenth of October, 1882, at Minden, in Kearney county. The first account given of the...