State v. Hizel

• Decision Date: 28 January 1966
• Docket Number: No. 36074,36074
• Citation: 179 Neb. 661,139 N.W.2d 832
• Parties: STATE of Nebraska, Appellee, v. John HIZEL, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 832

139 N.W.2d 832

179 Neb. 661

STATE of Nebraska, Appellee, v. John HIZEL, Jr., Appellant.

No. 36074.

Supreme Court of Nebraska.

Jan. 28, 1966.

Syllabus by the Court

1. Under section 28-402, R.R.S.1943, a purpose to kill and malice are essential elements of murder in the second degree and, under a charge therefor, both must be proved beyond a reasonable doubt.

2. Malice is never implied or presumed as a matter of law where the circumstances of the killing are testified to on the trial by eyewitnesses.

3. Where the evidence does not prove a higher degree of homicide than manslaughter, it may be prejudicial error to submit to the jury the issue of murder in the second degree.

4. This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

5. Where the evidence and circumstances of the crime are such that different conclusions may properly be drawn therefrom as to the degree, the trial court is without error in submitting the different degrees to the jury for its determination.

Willard F. McGriff, Alfred J. Kortum, Gering, for appellant.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

BROWER, Justice.

The defendant John Hizel, J., at a trial to a jury in the district court for Scotts Bluff County, was found guilty of the crime of murder in the second degree perpetrated on the person of Elbert Eugene Hendren. He was sentenced to the Nebraska Penal and Correctional Complex for life. The defendant was not charged with murder in the first degree. He has by an appeal brought the case to this court.

The fatal occurrence took place on Sunday, October 11, 1964. The defendant John Hizel, Jr., his wife, and stepson, Glen Dalrymple, aged 16 years, lived together in their home in Mitchell, Nebraska. Harold Dalrymple, another stepson, a single man, lived a few blocks from them. The defendant was about to go to the veterans hospital at Cheyenne for an examination. At the suggestion of Harold, the stepsons and the defendant decided to have a farewell party, or celebration, for the latter. Before an early Sunday dinner they went in defendant's 1953 Plymouth sedan to Bob's Superette at Scottsbluff and got a six-pack of beer. This they drank, each consuming two cans, on their way back to Mitchell where they had dinner with the wife and mother. After dinner between 1 and 1:30 o'clock they went to Terrytown and bought a case of Colt 45 malt liquor, referred to as ale. They then proceeded to drive and drink during the afternoon. They appear to have all become intoxicated in varying degrees. None of them remembered all of the roads they took, or the towns or places they went through, and Harold remembered very little of the trip.

Shortly before the fatal events hereafter related they had for a considerable distance been driving eastward on a narrow private road which runs on top of the dike along the Gering-Ft. Laramie irrigation ditch. Between 3:30 and 4 o'clock they were passing on this road through the farm premises where the deceased victim of the lethal shot lived. The road in that vicinity is on the north bank of the canal. Eighteen cans of Colt 45 had then been consumed. About 2/10 of a mile west of the intersection of this private road with a north and south county road passing through the same farm, the front wheel of their sedan became caught in a cattle guard they were attempting to cross, apparently because of a missing rail or plank in its floor. In extricating the wheel an argument ensued between the two brothers. Glen said it arose as to which of them should get down and retrieve an automobile jack, used in the operation, which had fallen into the pit of the cattle guard. Its recovery did not, however, stop the argument which grew quite heated and eventually led to blows. In the end the brothers descended the dike, repaired to an adjoining meadow to the north, and engaged in 'fisticuffs.' The blows were interspersed with considerable shouting and swearing. The defendant got out of the sedan and attempted to separate them but failing in so doing returned to the car and took the driver's seat previously occupied by Glen. The brothers never returned to the sedan but first Glen and eventually Harold walked diagonally northeasterly across the meadow to the county road.

The deceased, Elbert Eugene Hendren, was generally referred to in the testimony as 'Gene' Hendren and will be so designated herein. He lived with his wife, Wanda Hendren, on the farm through which the canal and dike road passes and where the cattle guard is located. The north and south county road extends by means of a bridge over the canal. The canal and county road cross approximately but not exactly at right angles. Immediately to the south of the canal and just to the west of the county road is the building site of the farm. It is surrounded by an extensive grove of trees. Mr. Handren worked elsewhere and neither owned nor operated the farm. The farm which included land on both sides of the canal was owned by Ione Campbell, mother of Wanda Hendren. Mrs. Campbell lived in a separate residence at the same building site. On the morning and early afternoon of October 11, 1964, several truckloads of cattle belonging to others arrived at the home site. Mr. Hendren assisted in unloading, sorting, and corralling them. The work with respect to the last load was completed at approximately 4 o'clock that afternoon. Shortly thereafter they heard the loud talk emanating from the fight between the Dalrymple brothers but from the farmstead could not see what was happening. The weather was dry and there were many stacks of hay upon the meadow. Mr. and Mrs. Hendren thought they should find out what was going on. For that purpose they walked out to the bridge, which was somewhat elevated, to view the meadow. They saw the defendant's car parked on the dike road and three persons in a group out on the meadow not far from the cattle guard.

Up to this point there is little dispute as to the facts. The evidence with respect to what occurred at and near the bridge is conflicting and will be outlined separately with respect to the testimony offered by the State and the defendant.

The evidence offered by the State is embodied in the testimony of Wanda Hendren and Ione Campbell who, aside from the defendant himself, are the only persons claiming to by eyewitnesses to what occurred near the bridge. Mrs. Hendren said that Gene Hendren on seeing the men on the meadow told her to go and get the pickup. Thereupon she ran or briskly walked home and got it. Mrs. Campbell who was quite deaf had seen the Hendrens walk to the bridge and knew something was going on and asked to go too. She returned with Mrs. Hendren in the pickup which was parked near the bridge on the east side of the public road. When they returned the defendant's car was parked on the ditch company road 25 or 30 feet west of the county road, close to an electric light pole. Gene Hendren was standing in front of defendant's car and the two men were just off to the side of it talking. Meantime, Glen Dalrymple, walking diagonally northeasterly across the meadow, had reached and was walking northward on the public highway some distance away but could be seen from the bridge. Mr. Hendren asked his wife to go and get the boy with the pickup. She drove northward on the road and asked him to go back with her but he refused. Glen testified he told her he wasn't going back, he would just get into another argument. Mrs. Hendren then drove back to the bridge.

While Wanda Hendren was away with the pickup, Ione Campbell testified that she stood on the corner of the bridge. When she started to go to Gene Hendren, he motioned her to stay back. She could tell Gene and defendant were talking but because of deafness was unable to hear any of the conversation. Defendant had a gun which he was waving in front of Gene's face and Gene was taking his hands and forcing the defendant back. In this manner the two men backed up to the car door and Gene opened it and defendant got in. She never saw the gun again until after the shot. Gene made a motion which Mrs. Campbell interpreted as meaning, "Go on, everything is clear." The defendant did not start the motor but in just a little while opened the door and again stepped out by Gene. Standing there Mrs. Campbell observed Harold Dalrymple going northeasterly on the hay meadow. He took a few steps, staggered, and fell several times. About this time Wanda Hendren came back and walked over where the two men were. Mrs. Campbell said to Wanda, "There is a man up there that is wounded, I think,' or something.' The three were standing along the defendant's car and gradually backing up toward its rear. The two men backed to the west end of the automobile when Mrs. Campbell heard a shot. She saw the defendant fall back and Gene fell at the same time. Gene got up, threw the gun in the canal, and fell again. The defendant got in his car and left.

Wanda Hendren testified that when she got back to the bridge she got out of the pickup and walked over beside her husband. The defendant was standing against his car. Defendant was telling Gene what his name was and for whom he had worked. She could tell he was incapacitated so she suggested they go home and let the defendant go his way. Gene told his wife the defendant had a gun. He asked Wanda to get it. She walked over behind defendant and reached in his back pocket and found a billfold which she left there. She never got the gun. She asked for it and the defendant looked at her but said nothing. Gene put his arms across the defendant's arms and there was a sudden move, a scramble 'such as...