Stehr v. State

• Decision Date: 16 January 1913
• Docket Number: 17,539
• Citation: 139 N.W. 676,92 Neb. 755
• Parties: HENRY STEHR v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

139 N.W. 676

92 Neb. 755

HENRY STEHR v. STATE OF NEBRASKA

No. 17,539

Supreme Court of Nebraska

January 16, 1913

ERROR to the district court for Madison county: ANSON A. WELCH JUDGE. Affirmed.

AFFIRMED.

H. F Barnhart, M. D. Tyler, William V. Allen and William L Dowling, for plaintiff in error.

Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.

OPINION

BARNES, J.

The plaintiff in error, hereafter called the defendant, was convicted in the district court for Madison county of the crime of manslaughter, by negligently causing the death of his stepson, a child about four years of age. He was sentenced to the penitentiary for a term of from one to ten years, and to reverse the judgment of the district court has brought the case here by a petition in error.

It is his first contention that the evidence is insufficient to sustain the verdict. From a careful reading of the bill of exceptions it appears that the defendant is a native of Germany, and prior to his removal to this country resided in the city of Hamburg; that on the 6th day of April, 1909, he was married to one Minnie Loco, who was at that time the mother of an illegitimate child about two years of age, called "Kaurt;" and who, after the marriage, was known as Kaurt Stehr; that in July, 1910, the defendant left his wife, his infant child, and his stepson Kaurt in Hamburg and came to Norfolk, Nebraska; that afterwards, and in the month of October, defendant sent for his wife and child, with the understanding that the stepson was to be left with defendant's mother in Germany. For some reason, not fully explained, the defendant's mother declined to keep the child, and it was brought, by the defendant's wife, to this country. Shortly after her arrival at Norfolk defendant rented a house and established a home in that city, the family consisting of his wife, their infant child, and stepson, Kaurt. It appears that while in Germany, and after they came to this country, Kaurt was to some extent afflicted with bed wetting, and for that weakness defendant was in the habit of punishing the child frequently and quite severely; so much so that complaint was made against him in Germany, and his friends and neighbors in this country remonstrated with him, and informed him that unless he desisted the child might become idiotic. It should be stated that defendant was without means, except his earnings as a day laborer, and the help furnished him by his wife in laundry work. On the 31st day of December, 1910, there was a severe storm in the vicinity of Norfolk, which is described as a blizzard, and that night the weather was very cold. Defendant allowed the fire to go out altogether, although he had a small supply of coal; and, as stated by him, some time during the night he discovered that Kaurt had wet the bed; that the bedding was frozen stiff; that the room was full of frost; that snow had drifted through the crack of the door and through a broken window pane; and the bedding on all of their beds was frozen stiff. Notwithstanding this situation, defendant built no fire, and, as stated by him, he turned the bedtick, on which Kaurt slept, over, and again placed the child in the bed, alone, where he lay until the next morning. Shortly after this, and as early as the 5th day of January following, it was discovered that the child's feet had been frozen, and had begun to show signs of discoloration. Mrs. Stehr stated that the child's feet looked gray and somewhat green in spots. Defendant thereupon applied hot water and dressed the feet with cloths, saturated with vaseline. No physician was consulted or called until the 16th day of January following, at which time the child's feet were so badly decomposed that the stench arising therefrom had become unbearable. Defendant's wife then went to a merchant, with whom they were trading, and inquired for a German doctor. Doctor Pilger was recommended, and he called to see the child, but declined the case because the defendant had no money. Doctor Verges, another German physician, was called, who on the same evening visited the child, and also declined the case, but recommended that the city physician be notified of the situation. On the following day Doctor Tashjean, the city physician, who is a skilful surgeon, called at the defendant's house, examined the child, found a gangrenous condition of its feet, and informed defendant that amputation was absolutely necessary. Meanwhile, one of the county commissioners, who was active in securing assistance for the poor, furnished defendant with a supply of coal and other necessaries, and arranged for the amputation. The child was taken to the home of Mrs. Klentz, a professional nurse, and on the following day the operation was performed by Doctors Tashjean and Salter, and everything possible was done for the relief of the child. It was found, however, that sepsis or blood poisoning had developed to such an alarming extent that a recovery was impossible, and on the 22d day of the month the child died.

The indictment charged the defendant with murder in the first degree, which, of course, included the lesser crimes of murder in the second degree and manslaughter. The district court instructed the jury to find the defendant not guilty of first or second degree murder, and the cause was tried and submitted to the jury on the theory that defendant, being charged with the duty to control and support the deceased child, wilfully and negligently caused and permitted its life to be endangered after having knowledge that its feet were badly frozen, and wilfully failed and neglected to summon medical aid or make known its condition, thereby causing its death.

It must be observed that the question actually submitted to the jury was whether or not defendant was criminally negligent in failing to provide medical care for his stepson after he discovered the frozen condition of of the child's feet. It is contended that defendant is an ignorant German, unable to speak the language of this country, was without means to procure medical assistance, and therefore was not responsible for his neglect. The...