State v. Hare, s. 38761

• Decision Date: 08 June 1973
• Docket Number: Nos. 38761,38762,s. 38761
• Citation: 190 Neb. 339,208 N.W.2d 264
• Parties: STATE of Nebraska, Appellee, v. Leslie D. HARE, Appellant. STATE of Nebraska, Appellee, v. Melvin P. HARE, Appellant.
• Court: Nebraska Supreme Court

Page 264

208 N.W.2d 264

190 Neb. 339

STATE of Nebraska, Appellee, v. Leslie D. HARE, Appellant.

STATE of Nebraska, Appellee, v. Melvin P. HARE, Appellant.

Nos. 38761, 38762.

Supreme Court of Nebraska.

June 8, 1973.

Syllabus by the Court

1. In a prosecution for manslaughter in the commission of an assault and battery, the time of the offense is fixed at the time the fatal blow is struck.

2. To sustain a conviction for manslaughter, the evidence must be sufficient to justify the finding of a causal connection between the unlawful act and the death of the victim.

Charles A. Fisher, Fisher & Fisher, Chadron, for appellants.

Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.

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

SMITH, Justice.

In criminal prosecutions for false imprisonment and manslaughter a jury found Leslie D. Hare and Melvin P. Hare guilty of both offenses. The Hares appeal. Some assignments of error relate to variance and sufficiency of the evidence to sustain the verdicts of guilty on the charges of manslaughter.

On Saturday, February 12, 1972, Leslie, Melvin, Bernard Lutter, Robert Bayliss, and a girl were riding for pleasure in an automobile that Bayliss was operating in Gordon. Bayliss stopped at 9 p.m. upon the request of Leslie. The latter stepped out, shoved an Indian man, who was afoot, and reentered the automobile saying, 'Let's go.' He also said 'something about really getting him.' Leslie and Bayliss spoke of throwing an Indian into the American Legion Club for a prank.

The Bayliss party subsequently saw the same Indian, Raymond Yellow Thunder, enter Borman's used car lot. Bayliss stopped, and the four men began to search for Yellow Thunder. Leslie found him in an old pickup truck and opened the door, causing Yellow Thunder to fall to the ground. Leslie, who wore low-heeled, heavy boots, grasped the stock rail and appeared to be 'hopping' up and down. He said he was 'really stomping him.' Bayliss and Melvin rushed to the scene. The former struck Yellow Thunder several times in the face, saying, 'It's lots of fun.' There was no direct testimony to Leslie's striking the Indian on the head, to Bayliss' blows landing above the nose or cheeks, or to Melvin's striking the Indian anywhere.

Melvin and Leslie proceeded to remove Yellow Thunder's trousers. Leslie 'just kind of asked him if he wanted to go for a ride,' and Melvin suggested taking him to the American Legion Club. They placed him in the automobile trunk which, according to photographic evidence and testimony of many witnesses, had a latch to open the trunk from the inside. A Nebraska patrolman, who had examined the trunk thoroughly on February 21, however, testified that the trunk then had no inside latch.

With Yellow Thunder in the trunk the automobile was driven around in Gordon 45 minutes. The trunk was opened between 11 p.m. and midnight. Yellow Thunder climbed out and Melvin walked to the door of the Legion Club. Lutter opened the door and Melvin shoved Yellow Thunder inside. Lutter shut the door, and the two men ran.

Inside the club the Indian, Raymond Yellow Thunder, shielded his face with right hand, pulling his shirt tail with his left hand and hanging his head in embarrassment. Injury to his forehead was not seen there, but a bruise on the right hip was observed. According to Yellow Thunder, he had been 'roughed up' and desired to leave. Age 51, he walked out of the club steadily and subsequently proceeded north toward the used car lot.

Again finding Yellow Thunder at the used car lot, Leslie and others once more placed him in the trunk of the Bayliss automobile. They intended to drive him one block to a laundromat where they would release him with his clothes. Prior to releasing him, however, they actually drove several miles to Dean Hare's residence where Melvin left them. The party without Melvin then returned to the laundromat, and someone released Yellow Thunder, Lutter throwing the trousers inside the establishment.

John Paul, a Gordon police officer, saw Yellow Thunder at the police station shortly after midnight the morning of February 13. Yellow Thunder at his own request spent the remainder of the night there. Paul observed 'bruises and scratches above the right eye and below the eye, and along the cheek on his right side. . . . (and) right directly above the right eyebrow there was a small cut or wound.' The wound glistened, appearing fresh, but blood was not running out of it. Paul smelled the odor of liquor on the breath of Yellow Thunder, who did not appear, however, to be intoxicated.

According to the witness Ghost Dog, on February 13 he talked to Yellow Thunder inside a green pickup truck in the used car lot. 'Several days' afterwards, on Friday, the 18th, Ghost Dog against saw Yellow Thunder who appeared to be asleep in the same truck in the used car lot.

In response to a report at 4:20 p.m., February 20,...