State v. Moss, 36672

• Decision Date: 19 January 1968
• Docket Number: No. 36672,36672
• Citation: 182 Neb. 502,155 N.W.2d 435
• Parties: STATE of Nebraska, Appellee, v. Joseph Douglas MOSS, Appellant.
• Court: Nebraska Supreme Court

Page 435

155 N.W.2d 435

182 Neb. 502

STATE of Nebraska, Appellee, v. Joseph Douglas MOSS, Appellant.

No. 36672.

Supreme Court of Nebraska.

Jan. 19, 1968.

Syllabus by the Court

1. Intent is an essential element in the crime of shooting with intent to kill, wound, or maim and proof thereof is indispensable to sustain a conviction, but such intent is ordinarily inferable from the facts and circumstances.

2. While a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is competent evidence of that fact, and may, with slight corroborative circumstances, be sufficient to sustain a conviction.

3. Instructions must be considered as a whole in determining whether a particular instruction or the lack thereof is prejudicial.

4. Where the punishment of a criminal offense is left to the discretion of a court within prescribed limits, a sentence imposed within such limits will not be disturbed unless there appears to be an abuse of such discretion. A substantial reason for the reduction of the sentence must be warranted by the evidence.

5. When the transcript of the record of the examining magistrate shows that an accused has had or waived a preliminary examination, and it is contended that in fact no such examination was had or waived, the absence of such examination or waiver should be raised by plea in abatement.

6. Defects in procedure which might have been attacked by a motion to quash or a plea in abatement are waived when a defendant pleads to the general issue.

7. A claim of error on the ground of ineffective assistance of counsel must be supported by a record showing that counsel's assistance was so grossly inept as to shock the conscience of the court.

Charles I Scudder, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.

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

CARTER, Justice.

The defendant was convicted in the district court for Douglas County of the crime of shooting with intent to kill, wound, or maim. He has appealed to this court.

The complaining witness is Leslie Higgins, an entertainer. After getting off work on the early morning of December 25, 1966, he went to the Moss cafe in Omaha to pick up his girl friend who worked there. She had to work late and could not leave until 5 or 6 o'clock a.m. While at the cafe Higgins met the defendant who attempted to sell him a pistol which Higgins did not buy. Higgins walked from the Moss cafe to 2015 North Twenty-fourth Street, where, incidentally, defendant had a room. Defendant came to his place of residence where he joined with Higgins and Herman Williams in a dice game. Defendant says Higgins dropped an extra dice accidentally and a quarrel ensued in which defendant claimed Higgins had cheated him out of his losses. Defendant drew the pistol and demanded his money back. Higgins left and defendant followed him out of the house and shot Higgins in the back as he walked up the street. Defendant asserts that he drew the pistol only to frighten Higgins into returning his money and that he fired into the air at the time he shot Higgins without any intention of hitting him. A police officer arrived on the scene shortly after the shooting and disarmed the defendant. There were witnesses at the scene of the shooting whose evidence was in some respects conflicting. Defendant admitted shooting Higgins, but contends that he had no intention of shooting him, his only intent being to frighten Higgins into paying back the money he had lost.

The evidence presented a jury question which it resolved against the defendant. The evidence was ample to sustain a conviction and defendant's motions for a directed verdict at the close of the State's evidence and at the close of all the evidence were properly overruled.

The defendant asserts error in the instructions, particularly instructions Nos. 7 and 8, which purport to define and explain malice and intent. We find no error in them. The defendant appears to claim that the instructions were erroneous in that they failed to inform the jury of the effect of an accidental shooting. But the instructions are replete with statements that the jury must find that defendant shot the prosecuting witness with intent to kill, wound, or maim. The jury was told in paragraph numbered 3 in instruction No. 6: 'That the defendant so shot Leslie Higgins with either the intent to kill, or the intent to wound, or the intent to maim Leslie Higgins.' It was made abundantly clear that the shooting must have been with the intent to kill, would, or maim, which excludes the idea of an accidental shooting, in order for the jury to find the defendant guilty. The contention has no merit.

Defendant argues that the circumstantial evidence was not sufficient to establish the corpus delicti of the crime. In his argument, the defendant overlooks the fact that the defendant admitted that he shot the prosecuting witness, which admission was testified to by the State's witnesses. Under such circumstances little corroborative evidence is required to establish the corpus delicti of the crime. The corroboration was ample. Sullivan v. State, 58 Neb. 796, 79 N.W. 721; Kirkendall v. State, 152 Neb. 691, 42 N.W.2d 374.

An examination of all the instructions and giving consideration to them as a whole, as we are required to...