State v. DeBerry

• Decision Date: 27 April 1973
• Docket Number: No. 38808,38808
• Citation: 206 N.W.2d 642,190 Neb. 177
• Parties: STATE of Nebraska, Appellee, v. Earl E. DeBERRY, Appellant.
• Court: Nebraska Supreme Court

Page 642

206 N.W.2d 642

190 Neb. 177

STATE of Nebraska, Appellee, v. Earl E. DeBERRY, Appellant.

No. 38808.

Supreme Court of Nebraska.

April 27, 1973.

Syllabus by the Court

If the evidence in a criminal case is such as to warrant only a verdict of the greater offense, or one of not guilty, then it is not proper to give an instruction on a lesser included offense.

Frank B. Morrison, Sr., Public Defender, Stanley A. Krieger, Thomas Kenney, Asst. Public Defenders, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Deputy Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

WHITE, Chief Justice.

The defendant was charged and jury convicted of shooting with intent to kill, wound, or maim. § 28--410, R.R.S.1943. The defendant was sentenced to an indeterminate term of 3 to 5 years in the Nebraska Penal and Correctional Complex. His contentions on appeal are that the court refused to instruct the jury of the lesser included offense of assault and battery and that his indeterminate sentence was erroneous. We affirm the judgment and sentence of the District Court.

The defendant's first contention is that the court should have instructed upon the lesser included offense of assault and battery. The giving of an instruction on a lesser included offense, even if requested, is proper only when applicable to the evidence and where the evidence would justify a verdict of guilty of the lesser offense of assault and battery. If the evidence is such as to warrant only a verdict of the greater offense, or one of not guilty, then it is not proper to give such an instruction. State v. Randall, 187 Neb. 743, 193 N.W.2d 766; Olney v. State, 169 Neb. 717, 100 N.W.2d 838.

We go to the evidence. The defendant and his wife had been divorced. They had lived together for a short time thereafter in April of 1972 in an attempt to patch up their marriage. Yvonne DeBerry, the wife, testified that when she returned home from work at approximately 6 p.m. the defendant was there. An argument ensued over whether she was turning the kids against her husband and whether she had told one of the daughters to call DeBerry names. DeBerry had a gun in his hip pocket. They were sitting on chairs. As the argument proceeded, DeBerry got up first, reached into his back pocket, and pulled out the gun. The defendant threatened her. She tried to calm him down. She walked up to him and touched him. Then she was knocked to the floor, dazed, and at the same time she heard the explosion of the gun firing and felt throbbing in her upper left chest. While she was down she heard several shots and felt burning and pressure. She was coughing, got up, and ran out the kitchen door, down the block, to a neighbor's house. She was bleeding and coughing blood. Actually she was shot in the left arm and as a result has three scars on her left arm. She also testified that her husband stated at least once that he was going to kill her and was cursing during this period of time. She had no weapons on her.

An expert from the Omaha police department arrived and gathered three spent shell casings from the apartment. Two of the shell casings were about 5 or 6 feet inside the door and approximately 8 or 9 inches apart, and the third one was lying on the floor of the apartment approximately 10 feet from the others, and to the left. He identified and examined the .25 caliber pistol involved in the shooting. The evidence is undisputed that this gun was in good order, with no defects, and that it would not fire without the pulling of the trigger each time a shot was to be fired. Each time the trigger is pulled a shell is ejected. There was a pool of blood approximately 8 to 10 feet...