State v. Worley

• Citation: 132 N.W.2d 764,178 Neb. 232
• Decision Date: 29 January 1965
• Docket Number: No. 35789,35789
• Parties: STATE of Nebraska, Appellee, v. Douglas WORLEY, Appellant.
• Court: Supreme Court of Nebraska

Page 764

132 N.W.2d 764

178 Neb. 232

STATE of Nebraska, Appellee, v. Douglas WORLEY, Appellant.

No. 35789.

Supreme Court of Nebraska.

Jan. 29, 1965.

Syllabus by the Court

1. It is the duty of the court, in a homicide case, to instruct only on those degrees of homicide as find support in the evidence.

2. Manslaughter is the killing of another without malice, eitehr upon a sudden quarrel or unintentionally while the slayer is in the commission of some unlawful act.

3. Malice, intent, or purpose may usually be inferred from the shooting of another person with a deadly weapon.

4. To come within the provisions of the manslaughter statute, there must be evidence that the killing was not intentional or with a design to effect death.

5. An incriminating statement or accusation, made in the presence of an accused, which he has the opportunity to deny, but does not, may be admissible as an exception to the hearsay rule.

6. Before an incriminating statement or accusation made in the presence of an accused is admissible, the evidence must establish that the defendant heard the incriminating statement.

7. A declaration to be competent evidence as a part of the res gestate must have been made at such a time and under such circumstances as to raise a presumption that it was the unpremeditated and spontaneous explanation of the matter about which made.

Young, Denenberg & Mullery, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, and BROWER, JJ., and POLLOCK and SIDNER, District Judges.

WHITE, Chief Justice.

On prosecution for second degree murder, the court submitted the issues of second degree murder and manslaughter to the jury. A conviction for manslaughter resulted and the defendant appeals.

The deceased, Ralph Gomez, died of multiple gunshot wounds in the chest inflicted about 5 p. m., April 21, 1963, in the living room of the residence of Lucille Hembertt at 1436 South Sixteenth Street, Omaha, Nebraska.

Since the fall of 1962 of the defendant, single, had a continuing paramour relationship with Lucy (Lucille Hembertt). On the morning of April 21, 1963, at her residence, the defendant, Lucy, Joe Marino, Lucy's brother, and the deceased, Ralph Gomez, cooked a late breakfast or lunch and started drinking. The defendant said he consumed a fifth of whiskey during the day. Gomez was a former friend of Lucy's whom the defendant had met only once before at a tavern 3 or 4 months before. There is no evidence of any argument or trouble between the defendant and Gomez up until the time they left Lucy's house sometime in the afternoon. The defendant, Lucy, and Gomez left in Gomez' car, drove around, and then drove to an address 'way out north' to visit Gomez' girl friend. Murdock Platner, an Omaha police officer, testified that the defendant told him, in a conversation the next morning, of the events preceding the shooting of Gomez. The version is substantially as follows: That Gomez, Lucy, and the defendant went to Gomez' girl friend's house who lived 'way out north.' At first defendant waited in the car, then went in the house, and after about 10 minutes wanted to leave. Gomez didn't want to leave but offered to drive them back home and then he (Gomez) was going to come back. The defendant said it was too far and he walked out. After awhile Lucy and Gomez drove up in the car and asked him to get in but he just kept on walking. He then took a cab to Lucy's house and laid down on the bed. He got up and took a pistol from the closet shelf, loaded it, fired at some figurines above the window in the bedroom. He was reloading, or going to reload, the gun when he heard the doorbell ring. It was Gomez and Lucy. He asked where they had been and said that they took long enough to get home. He sat down on the divan and was fooling with the gun. He said he thought it was jammed and that he was trying to fix it. He said he was mad, was fooling with the gun, looked up, and Gomez was standing right in front of him. Gomez came toward him, took a step toward him, and raised his hands. He said he turned around with the gun and it went off. He said he jumped off the divan, the gun went off again, and Gomez slumped down on the floor. He then called the police and an ambulance. Defendant said the gun fired twice.

The defendant's testimony on trial gave nearly the same version of the circumstances up until the time the doorbell rang when Lucy and Gomez were returning. He testified on trial substantially as follows: He remembers hearing the doorbell ring. After the doorbell rang, he got up and left the bedroom, laid the gun either on the coffee table next to the door or on the sofa in the front room, and then opened the door. Lucy and Gomez were at the front door. He didn't see Joe Marino anywhere around at that time. Gomez and Lucy came into the house, and defendant went back into the bedroom and laid down on the bed. The next thing he remembers was hearing a couple of shots--he thinks the gun fired twice and he got up and went into the living room. He saw Gomez lying on the floor in the front room and Lucy was standing above him crying. He observed the gun on the floor next to Gomez, ran over and picked the gun up, turned Gomez over a little to see what was the matter, and noticed blood running down his arm. He went to the phone and called for an ambulance and eventually the police came. He was holding the gun in his hand when the two armed officers came in the house so he ran into the bedroom.

Rodman and Sorys, two Omaha police officers, arrived at the residence in response to defendant's call. This was at about 5:30 p. m. They saw a man lying face down in the center of the living room floor, saw Lucy standing next to the body, and saw the back of a man who ran into the bedroom to the northwest of the living room. Rodman ordered the defendant out of the bedroom, at first he refused to come out, then threw the gun out of the bedroom, and came out with his hands up. Another police officer, Haugher, testified that the defendant said in the living room as follows: '* * * she had nothing to do with it. He says, 'I did it." Police officer Mitchell corroborated this statement. Rodman and Sorys testified as to admissions of the defendant while they were taking him to the police station. Cartridge cases found next to Gomez' body were identified as having been fired from the gun that defendant had thrown out the door of the bedroom to the police officers.

The jury verdict acquitted the defendant of second degree murder and convicted him of the lesser included offense of manslaughter. He now makes the rather unique and novel contention that he was prejudiced because of the court's submission of the issue of manslaughter to the jury. He says he was either guilty of second degree murder or innocent. It is the duty of the court, in a homicide case, to instruct only on those degrees of homicide as find support in the evidence. Williams v. State, 103 Neb. 710, 174 N.W. 302; Garcia v State, 159 Neb. 571, 68 N.W.2d 151. Manslaughter is the killing of another without malice, either upon a sudden quarrel or unintentionally while the slayer is in the commission of some unlawful act. Section 28-403, R.R.S.1943. Defendant told police officer Platner that after he let Gomez and Lucy in the door that he asked, 'Where you guys been, sure took you long enough to get home, * * *'; that he went over to the divan and sat down; that he was fooling with the gun, thought it was jammed and was trying to fix it; that he had some words...