Vollmer v. State

• Decision Date: 21 November 1888
• Citation: 24 Neb. 838,40 N.W. 420
• Parties: VOLLMER v. STATE.
• Court: Nebraska Supreme Court

24 Neb. 838

40 N.W. 420

VOLLMER

v.STATE.

Supreme Court of Nebraska.

November 21, 1888.

Syllabus by the Court.

On a trial for murder in the second degree malice can be implied only in cases where the killing alone is shown. Where, in such a trial, the evidence showed all the circumstances connected with the killing by the testimony of the eye-witness, it was held to be error for the court to instruct the jury that, where the fact of killing was established, without any excuse or explanatory circumstances, malice was presumed, and the crime would be murder in the second degree.¹

Approximately malice is that condition of the mind which shows a heart regardless of social duty, and fatally bent on mischief, the existence of which condition is inferred from acts done, or words spoken. See Harris v. State, 8 Tex. App. 91, cited in Carr v. State, 23 Neb. 749, 37 N. W. Rep. 630.

The instruction that “no person has the right to take the life of another on the grounds of self-defense, unless,-- First, the life of such person is in danger, or such person is in danger of suffering great and permanent bodily injury; second, if such person's life or body is in danger, as last above stated, yet there is a reasonable means of escape from the assault, then it is the duty of such person to escape and save the life of his adversary.” Held error, because it omitted the element of reasonable grounds for the belief of such danger.¹

Where, in a prosecution for murder in the second degree, there was some evidence which, if believed by the jury, would tend to show that the accused was guilty of manslaughter, it was held error for the court to instruct the jury that, if they should find from the evidence that the accused did not kill the deceased maliciously and purposely, they should acquit. It was the province of the jury to pass upon the whole case, and say whether the accused, if guilty, was guilty of murder in the second degree or manslaughter.

Error to district court, Douglas county; GROFF, Judge.

Offut & English and Lee S. Estelle, for plaintiff in error.

E. M. Simeral, Atty. Gen., and J. M. Stewart, for the State.

REESE, C. J.

On the 10th day of June, 1887, an information was filed in the district court of Douglas county, charging plaintiff in error with the crime of murder in the second degree. The trial resulted in a verdict finding him guilty of murder in the second degree, as charged in the information. A motion for a new trial was filed, which was subsequently overruled by the district court, and plaintiff was sentenced to the penitentiary for the term of 20 years. He brings the cause to this court by proceedings in error.

The principal errors assigned in plaintiff's brief relate to the instructions given by the court to the trial jury; and in order to a clear understanding of those instructions, and their applicability to the evidence adduced upon the trial, it is necessary that a statement of facts, as developed, should be here made. We will therefore give a very brief epitome of what seem to have been the leading and principal facts in the case. The homicide occurred about 11 o'clock in the afternoon on Sunday, the 15th day of May, 1887. It appears that a number of persons assembled at what is known as “Moeller's Hall,” about 7 or 8 o'clock in the evening, for the purpose of drinking beer, dancing, and the enjoyment of such other social recreation as was suited to the tastes of the persons who assembled there. Among this assembly were plaintiff in error and the deceased, both of whom were young men. It is not shown that either of them engaged in the dance, but it very clearly appears that plaintiff in error, and perhaps deceased, drank of the beer which was being sold at the bar in the hall. Deceased had a light rattan cane. A few words of an unpleasant character were passed between them, when the deceased made some remark, the exact nature of which it is hard to give, as the witnesses differ as to the language used, but it was perhaps in the following language: “What will you give for a pipe full of your mustache?” When plaintiff in error replied, in substance, that if deceased would step out plaintiff in error would give him all of the whiskers he wanted. Deceased then threw down or dropped his cane, and expressed his willingness to step out at once. At this time some of the persons present interfered, and requested that no further difficulty be had. One of those present was the daughter of the proprietor of the dance hall, who stepped between the parties and requested or ordered that the quarrel cease. Plaintiff in error was with a companion by the name of Schell, and possibly others. Deceased was in company with a number of friends, whose names we need not here repeat. One of the deceased's friends took him by the arm, and led him away. Soon afterwards plaintiff in error and his friend left the hall for the purpose of going to a billiard hall and saloon, which was, perhaps, about one block distant. The night was dark, and there was no light upon the streets, except such as shone out from the lamps in the saloons and other buildings along the street. On their way down, plaintiff in error and his friend became separated, plaintiff in error being some little distance in advance. Soon after they left the hall, deceased and his friends left and followed after plaintiff in error and his friend, overtaking them a little before they arrived at the saloon to which they were going. It is not shown that plaintiff in error was aware of the approach of the deceased and his friends, nor does it appear that he knew they were following plaintiff in error, yet, as to the latter, there is, perhaps, some doubt. In passing down the street deceased was in advance of his friends, and as he passed Schell he struck or tapped him with his cane. No words seem to have been spoken. Deceased passed on, when Schell was approached by one of deceased's friends, who struck him with his fist, in the face. There is some doubt as to whether he was struck by deceased first, or whether he was first struck by deceased's friend Hinchey, who struck him with his fist. Nothing was said between Hinchey and Schell, but Schell passed on towards where plaintiff in error was. About this time they had approached near to and in front of the billiard hall and saloon to which plaintiff in error was going, and within a few feet of plaintiff in error. It is probable that deceased, being in front of his friend Hinchey, passed Schell; then, when Hinchey came up to where Schell was, Hinchey and deceased both moving much faster than Schell, Schell turned around towards Hinchey, when Hinchey struck him in the face. Schell then ran or walked rapidly, overtaking deceased and passing him, when deceased also struck him with his cane. About that time, Schell made some outcry, the exact nature of which it is difficult to give, as the testimony upon that part is conflicting. Some say that he called to plaintiff in error for help; others saying that his remark was, “Give it to them.” Plaintiff in error was either standing in front of the saloon, to which they were going, or was overtaken at that point, when he fired his pistol, the ball striking deceased, and killing him instantly. The crowd immediately scattered, when plaintiff in error went away.

A number of instructions were given to the jury, by the trial court, a few of which we will notice. The fourth instruction is as follows: “You are instructed that where the fact of the killing is established, without any excuse or explanatory circumstances, malice is presumed, and the crime would be, under such circumstances, murder in the second degree.” This instruction is objected to as not being applicable to the case made, and as being prejudicial, and as tending to direct the attention of the jury to that particular quality of homicide. This instruction is, perhaps, based upon Preuit v. People, 5 Neb. 377;Milton v. State, 6 Neb. 136. The doctrine contained in the instructions, when applied to a case in which nothing further than the killing is shown, is recognized by this court in the cases cited and in others, but we think it can have no application to cases like the one at bar. All the circumstances of the killing are shown by those who were eye-witnesses. The difficulty which arose in the dance-hall was so near the killing, both in point of time and distance, that it entered into the transaction, and became a part of the res gestœ. There was no time, from the utterance of the first unfriendly word in that hall until deceased fell lifeless upon the ground, but that a number of witnesses were present and in company with deceased, as well as plaintiff in error. Every movement, and every word, which was made or uttered during the whole transaction, was in the presence of the witnesses who testified upon the trial, and was detailed by them. Plaintiff in error was indicted for murder in the second degree. It was for the jury to say, from all the circumstances of the case, whether the killing was murder in the second degree, manslaughter, or excusable. When all the facts and circumstances connected with the killing were presented to the jury, it was for them to say whether plaintiff in error purposely and maliciously killed the deceased, or whether the killing was unlawful, without malice, upon sudden quarrel, or unintentionally done, (as testified to by plaintiff in error, upon the stand,) while the slayer was in the commission of some unlawful act, which would be manslaughter, or whether in self-defense, under reasonable apprehension of danger to life or great bodily harm, which would be excusable. We therefore think the instruction referred to should not have been given, and that it tended to withdraw from the jury the questions...