Young v. State

• Decision Date: 20 September 1905
• Docket Number: 14,119
• Citation: 104 N.W. 867,74 Neb. 346
• Parties: JAMES YOUNG v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

104 N.W. 867

74 Neb. 346

JAMES YOUNG v. STATE OF NEBRASKA

No. 14,119

Supreme Court of Nebraska

September 20, 1905

ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Reversed.

REVERSED.

R. D Stearns, W. W. Towle and W. P. McCreary, for plaintiff in error.

Norris Brown, Attorney General, and William T. Thompson, contra.

OPINION

BARNES, J.

James Young, who will hereafter be called the accused, was tried in the district court for Lancaster county on an information charging him with murder in the first degree for the killing of one Samuel Winter. He was found guilty of murder in the second degree, and was sentenced to imprisonment in the state penitentiary for a term of fifteen years, and from that sentence he prosecutes error.

It appears from the evidence that the accused was located at the State Fair grounds, near the city of Lincoln during the summer of 1904, and there had charge of some trotting horses owned by one Brownell; that he was authorized to employ assistants, and had full power to discharge them; that he prepared one of the stalls at the grounds for, and used it as, his office and sleeping apartment, having provided its doors with inside fastenings, consisting of hooks and staples; that during the summer, and up to about the 1st of September, he had in his service Max Wagner, Samuel Winter (the deceased), and a colored man of the name of Milt Basil. It further appears that on or about the last day of August he discharged Winter, and on the evening of September 1st met him in the city of Lincoln, and paid him his wages, giving him $ 4 more than was his due; and the deceased at that time declared his intention to go to Denver, Colorado. The accused thereafter returned to the fair grounds in company with one John Wright, arriving there about midnight. After drinking some coffee at a lunch counter, he went to the stalls where the horses which he had charge of were kept, and ascertained that they had not been properly cared for. For this neglect he found some fault with Wagner and Basil, but no serious difficulty occurred between them. He then went to his sleeping apartment. He claims that before going to bed he heard some persons, whom he recognized by their voices as Wagner and the deceased, talking about "doing him up," as he expressed it. He thereupon went down the line of stalls to where one Vorhees was lying on a cot, and told him not to go to sleep, as he feared there would be trouble. He then returned to his apartment, placed his revolver under his pillow, undressed, and went to bed. Shortly afterwards, and about two o'clock on the morning of September 2d, Wagner and the deceased forced open the doors and entered the stall where the accused was sleeping. The evidence is conflicting as to what was there said and done by them. The accused, however, admits that he seized his revolver and fired three shots at them, or in their direction, with the result that Wagner was wounded in the arm, and the deceased was shot in the hip, the ball entering the abdomen, thus giving him a wound which caused his death. At the trial it was the theory of the defense that the accused was justified in firing the fatal shot in defense of his domicile and his person, and at the conclusion of the testimony he tendered certain instructions fairly submitting that defense to the jury, and requested the court to give them. They were refused, and he excepted to such refusal. It further appears that the court failed to instruct the jury on the law of this theory of the defense on his own motion, and such refusal and failure to instruct are now assigned as grounds for a reversal of the judgment of the trial court.

It is well settled in this state that it is the duty of the trial judge, particularly in criminal actions, to instruct the jury as to the rules of law governing the disposition of the cause, whether he is requested to do so or not; and if a charge to a jury, by omission to instruct on certain points, in effect withdraws from the consideration of the jury an essential issue of the case, it is erroneous. Pjarrou v. State, 47 Neb. 294, 66 N.W. 422; Dolan v. State, 44 Neb. 643, 62 N.W. 1090; Long v. State, 23 Neb. 33, 36 N.W. 310. The first question, then, for us to determine is: Was the stall or apartment occupied by the accused in a legal sense his domicile at the time he fired the fatal shot?

It appears from the evidence that the accused was a single man, and it was not shown that he had any home or place of abode other than the one where the tragedy occurred. The evidence also shows that he came there with Brownell's horses early in the spring of 1904 and had lived there continuously from that time until the shooting took place; that he had fixed up box stall No. 47 for his office and sleeping room, and had put inside fastenings on the doors; that he had therein his bed, his trunk, all of his clothing, his money, and the harness, boots and other things used by him in training and racing the horses which were in his charge. In fact, it was the only home he had. It was the place where he lived, his only place of residence. Text writers, so far, have been unable to agree upon a legal definition of the word "domicile," or rather as to what is a man's domicile. We find, however, in 14 Cyc. 834, a quotation from Smith v. Croom, 7 Fla. 81, defining the word as follows:

"We like this conception of the word home, which constitutes the commanding element of the definition given in the Roman law, as well as those given by two modern jurists. It is the word whose essential meaning comes up fully to our...