Willis v. State

Decision Date05 December 1894
Citation43 Neb. 102,61 N.W. 254
PartiesWILLIS v. STATE.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. In the trial of a criminal case, when the state calls a witness for the purpose of proving a confession made by the prisoner, before the witness is allowed to detail such information it is the privilege of defendant's counsel to cross–examine the witness as to the circumstances under which the confession proposed to be detailed was made.

2. In such case, if the defendant's counsel neglect to cross–examine the witness before he answers, and the answer is responsive to the inquiry, error cannot be predicated on the refusal of the trial court to strike out the answer of the witness.

3. In the trial of a criminal case it is competent for the state, in rebuttal, to show that a witness who testified for the defendant was intoxicated at the time of the happening of the events about which such witness has testified. Hill v. State, 60 N. W. 916, 42 Neb. 503, reaffirmed.

4. In a murder trial the court instructed the jury: “A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty.” Held, that the instruction was correct. Polin v. State, 16 N. W. 898, 14 Neb. 540, reaffirmed.

5. In a murder trial the court instructed the jury: “The court further instructs the jury, as a matter of law, that the doubt which the juror is allowed to retain on his own mind, and under which he should frame his verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror in view of the consequences of his verdict is not a reasonable doubt; and a juror is not allowed to create sources of materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to possible states of facts differing from that established from the evidence. You are not at liberty to disbelieve as jurors if, from the evidence, you believe as men; your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered. The jury are instructed that if, after a careful and impartial consideration of all the evidence in the case, they can say they feel an abiding conviction of the guilt of the defendant, and are fully satisfied to a moral certainty of the truth of the charge made against him, then the jury are satisfied beyond a reasonable doubt.” Held, that the instruction was correct in every respect.

6. In such trial the court instructed the jury: “If one with deliberation and premeditation uses a deadly weapon, * * * and shoots another intentionally, and such other, * * * in consequence thereof, dies, the person thus shooting is held responsible for the death, and, if the killing is neither justifiable nor excusable in law, is liable to be punished for murder in the first degree.” Held, that the instruction was erroneous, as the element of malice was omitted therefrom, but that the giving of it was not prejudicial to the plaintiff in error, as the court, in other instructions, had charged that, in order for the killing of the deceased to be murder in the first degree, the plaintiff in error must have killed him purposely, and of deliberate and premeditated malice.

7. Willis was tried for murder in the first degree for the killing of Bates. His defense was self–defense. The evidence tended to show that Bates had repeatedly made threats against Willis, and that these threats had been communicated to the latter; that at the time of the homicide Bates was in the saloon of Willis; that a quarrel arose between them, and Willis ordered Bates to leave the saloon; that Bates declined to do this, but took off his coat and walked up in front of the bar, behind which Willis was standing, and said, “I can do you,” at the same time putting his hand behind him or into his hip pocket, at which moment Willis shot him. The court charged the jury: “To justify the taking of life in self–defense it must appear from the evidence that the defendant not only really and in good faith endeavored to decline any further trouble and to escape from his assailant before the fatal shot was fired, but it must also appear that the circumstances were such as to excite the fears of a reasonable person that the deceased intended to take his life or do him great bodily harm, and also that the defendant really acted under the influence of these fears, and not in a spirit of revenge.” Held erroneous, because: (1) If Willis, at the time Bates approached him, honestly believed as a reasonable human being that Bates was about to take his life or to do him serious bodily harm, the law did not require him to fly. (2) He had a right to stand his ground, and make such defense as he honestly believed, as a reasonable human being, was absolutely necessary to protect himself from death or serious injury. (3) That the common–law rule––to justify a party assaulted in taking the life of his assailant, he must “retreat to the wall”––was not applicable to the facts in this case. (4) Nature has endowed all living beings with the love of life and the instinct of self–preservation. Man is no exception to this law; and when he is unlawfully attacked, and the circumstances surrounding him fix in his mind a sincere conviction that his life is endangered or his body in imminent peril, he may lawfully do that thing which, in his judgment as a reasonable human being, he honestly deems absolutely necessary to protect his life or save his body from serious injury. Parrish v. State, 15 N. W. 357, 14 Neb. 60, distinguished.

8. Filing a motion to quash a verdict more than three days after its rendition is equivalent to amending a motion for a new trial at that time, which cannot be done.

9. The information charging plaintiff in error with the crime of murder in the first degree, and on which he was tried, set out in the opinion, and in all things approved.

Error to district court, Dakota county; Norris, Judge.

James T. Willis was convicted of manslaughter, and brings error. Reversed.

William Warner and Jay & Beck, for plaintiff in error.

J. J. McAllister and Geo. H. Hastings, Atty. Gen., for the State.

RAGAN, C.

James T. Willis, in the district court of Dakota county, was found guilty by a jury of the crime of manslaughter for the killing of one Amberry Bates, and he brings the judgment pronounced against him on such finding here for review, assigning the following errors:

1. That the court erred in overruling plaintiff in error's motion to strike out the testimony of one Schmied, a witness who testified on the trial of the case on behalf of the state. Schmied, without any objection on the part of plaintiff in error, had testified that he resided in Dakota city, where the killing of Bates occurred; that he was engaged in the publishing of a newspaper at that place, and acquainted with the plaintiff in error, and had been for some years; that on the day of the killing of Bates, and very soon thereafter, he went to the saloon of the plaintiff in error, where Bates was killed, and there had a conversation with the plaintiff in error in reference to the homicide. He then testified that on the same evening, between 7 and 8 o'clock, in the sheriff's office, he had another conversation with the plaintiff in error; and thereupon he was asked by counsel for the state this question: “Q. What, if anything, did Mr. Willis say in that conversation? A. Why, we were down there, and I says, ‘Would you like to make a statement for publication?’ and he says, ‘No.’ ‘Well,’ I says, ‘I didn't know but what maybe you wanted to state the facts.’ I says, ‘It would be better to give the facts than the rumored report any time.’ Counsel for plaintiff in error then moved the court to strike out the above testimony, for the reason that the expression used by the witness, “It would be better to give the facts than the rumored report any time,” was an inducement held out to the plaintiff in error to make a statement. No objection was made to the question propounded to Schmied, nor did counsel cross–examine, nor seek to cross–examine, him before he answered as to whether any threats were made or inducements held out to induce the plaintiff in error to make the statement he did. In the trial of a criminal case, where the state calls a witness for the purpose of proving a confession made by the prisoner, before the witness is allowed to detail such information it is the privilege of defendant's counsel, and the better practice, to cross–examine the witness as to the circumstances under which the confession proposed to be detailed was made. Counsel cannot wait until the witness has answered, and then move to strike the statement from the record, if the answer is responsive to the inquiry. The assignment of error, however, is without merit, for the reason that the witness, in the testimony which it was moved to strike out, made no statement of any confession made to him by the plaintiff in error as to whether he committed the crime with which he was charged. He declined to make a statement, saying that he would tell his story before a coroner's jury.

2. That the court erred in overruling objections made by plaintiff in error to the evidence of one Rathbun. One Brown was a witness for the state, and testified that he was present at the homicide, saw Willis shoot Bates, and that after he had shot him, and he fell, Willis walked up to where Bates was lying, and shot him again. One Endersby was called as a witness for Willis, and testified that he was present at the homicide, and also testified that said Brown was not present. On rebuttal, the state called the witness Rathbun, and he testified that he saw the witness...

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8 cases
  • State v. Sipes
    • United States
    • United States State Supreme Court of Iowa
    • 21 Junio 1926
    ...v. Bennett, 128 Iowa, 713, 105 N. W. 324, 5 Ann. Cas. 997;State v. Leeper, 199 Iowa, 432, 200 N. W. 732. See, also, Willis v. State, 43 Neb. 102, 61 N. W. 254. [2] The consensus of authority, without a dissenting vote, seems to be that, where homicide is committed in defendant's own office ......
  • State v. Sipes
    • United States
    • United States State Supreme Court of Iowa
    • 21 Junio 1926
    ...150, 17 N.W. 446; State v. Bennett, 128 Iowa 713, 105 N.W. 324; State v. Leeper, 199 Iowa 432, 200 N.W. 732. See, also, Willis v. State, 43 Neb. 102 (61 N.W. 254). consensus of authority, without a dissenting vote, seems to be that, where homicide is committed in defendant's own office or p......
  • Nightingale v. State
    • United States
    • Supreme Court of Nebraska
    • 10 Julio 1901
    ...instruction on the subject of reasonable doubt almost identical with the one set out in the fifth point of the syllabus to Willis v. State, 61 N. W. 254, 43 Neb. 102.Held, not error. 5. An instruction in which the court said to the jury that the evidence tended to show that the defendant wa......
  • Willis v. State
    • United States
    • Supreme Court of Nebraska
    • 5 Diciembre 1894
  • Request a trial to view additional results

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