Clawson v. State , 96 Neb. 499 ( 1914 )

Reese, O. J.

Plaintiff in error, who will be referred to as defendant, was informed against in the district court for Saline county, charged with the crime of murder in the first degree in the killing of one Ross McKinzey. There was a jury trial, which resulted in a verdict of murder in the second degree being returned against him, and on which he was sentenced to confinement for 15 years in the state penitentiary. He alleges error, and brings his cause to this court for review.

One of the alleged errors insisted upon, which was presented in the district court in a motion to quash the information, was that defendant had no preliminary examination. The transcript of the county judge, before whom defendant was taken upon his arrest, contains the following recital: “Defendant, Clarence Clawson, present in court, was duly arraigned and plead not. guilty to the complaint. Examination thereof was waived. On consideration of the files, I find there is probable cause to believe that the said defendant Clarence Clawson committed the ■offense charged in the complaint. It is further found that said offense charged is not bailable, and defendant is remanded to the custody of the sheriff until the next term of the district court of Saline county, Nebraska.” This is sufficient to give the district court jurisdiction. The law requiring a preliminary examination before an examining magistrate was enacted for the benefit of the accused, and he may waive it, if he so desires. Reinoehl v. State, 62 Neb. 619; Latimer v. State, 55 Neb. 609. Where the record of the filing of a complaint before an examining magistrate against a defendant, his arrest and arraignment, and that he waived examination, is shown, this is a sufficient compliance with the law. Korth v. State, 46 Neb. 631.

It is insisted that the evidence adduced at the trial does not sustain the verdict of murder in the second degree, and, at most, does not show the commission of a higher crime than manslaughter. This requires an investigation of the evidence submitted to the jury. There is no contention that decedent was not killed by defendant, but it is contended that, under the circumstances shown, the verdict could not legally have been guilty for so great a crime as found. It appears that the tragedy occurred in the city of Wilbur, in the night, during a street fair or carnival; that defendant’s wife and another woman were there for immoral purposes; that defendant at the time was not with them, but was so located as to act as solicitor for his wife, and so that she could bring and deliver to him the money received by her for her debauchery, and which he received, she returning to'her crimes. Decedent (McKinzey) approached the other woman upon the street, .asking her if she was there for money, to which she gave an affirmative answer. They turned into an alley, where defendant’s wife joined them. Decedent became involved in a dispute with the other woman and struck her, knocking her down, following up the assault by further violence. She called to defendant’s wife for help. Defendant’s wife caught him by the shoulder, and ordered him to cease striking the other woman, whereupon he arose and assaulted her, striking her in the face with his fist. She called for defendant, and when he went to her relief he saw decedent strike his wife the second time. He interfered, and an altercation occurred between them, followed by blows. Defendant had a razor, which he used on decedent, cutting his throat so that he soon thereafter died. There is but little conflict in the testimony as to many of these facts. However, there is some conflict as to the details of what occurred immediately before and at the time of the cutting of decedent’s throat. The woman, who-gave her name as Craft, testified on the part of the state that, when defendant’s wife called for her husband, Mc-Kinzey struck her twice, at which time defendant came, and McKinzey said: “Who are yon?” Clawson, the defendant, said: “ ‘Don’t hit that woman. I will fix yon so' you will never hit another.’ Then they sprang together, McKinzey taking Clawson by the throat and by the wrist; then they fell apart again. There were some words passed, but I don’t remember what they were. Then they came together again. I saw Clawson’s arm shoot out; McKinzey stagger back, putting his hand to his throat. Clawson says, ‘Come, let’s make our get-away from here.’ We turned and left.” In another part of her testimony, she was asked: “Q;. Now, when they fell apart, what happened? A. They went back together again, Mr. Clawson’s hand shot out. Q. Where were McKinzey’s hands at that time? A. His hands didn’t go out.' Q. What do you mean by that? Just describe how they were, if you know? A. As far as I saw, his hands were hanging to his sides. Q. And then what happened? A. Clawson’s hand shot out and McKinzey put his hand to his throat and staggered back. Q. And then what happened? A. We left there then. Q. What did Clawson say, if anything? A. He says, ‘Come, let’s get away from here.’ ”

While the defendant had the perfect legal right to defend himself and wife from assaults by McKinzey, yet, if the jury believed the testimony of this witness, the danger of further assaults had apparently passed, and the conflict was between' the two men. If she told the truth, defendant became the aggressor in the use of the razor, and would have to be held responsible for his act, in the-use of the deadly weapon, no matter what his intentions may have been. The evidence all tends to show that all the parties to the transaction were of the most debased of human kind, little, if any, above the dumb brutes — one apparently no better than the other. The testimony of defendant and his wife, if believed by the jury, might place the act of the killing in a less criminal light; but, the jury being the sole judges of the weight of the testimony, we must accept their verdict as final upon that question. This-being true, the verdict of guilty of murder in the second degree will have to be sustained.

It is insisted that the evidence adduced did not show premeditation and deliberation on the part of defendant, which would he necessary to constitute murder in the first degree, and the jury should have been so instructed. The information charged murder in the first degree. The question of premeditation and deliberation were for the decision of the jury, and therefore it was proper for the court to instruct on that phase of the case, leaving it for the jury to decide. They found defendant guilty of murder in the second degree, which eliminated the subjects of deliberation and premeditation. We find no just ground for complaint in this part of the case.

It is complained that there was error in the exclusion of offered testimony as to the condition of McKinzey as to whether he was excited at and during the time of his assault upon the woman Graft. In this there was no error, as that episode had passed and the woman was on her feet before defendant appeared upon the scene. The proposed evidence lacked the element of materiality.

It is next contended that the court erred in permitting evidence tending to show that defendant had been guilty •of crimes other and disconnected with the one charged in the information. There is no question but that both defendant and his wife had been leading the most abandoned ■and criminal lives, and that without shame or remorse.This was shown throughout the whole case by both. The evidence of defendant’s arrest at one time was brought out in his cross-examination. His wife testified that she had never known him to be engaged in a fight. She was asked on cross-examination if he had not had a fight with a policeman in Lincoln. Her answer was that for an insult he had hit a policeman, but there was no fight. The cross-examination was proper enough, but barren of results, having brought out no fact to the disparagement of defendant; therefore, even if erroneous, could not have been prejudicial.

Defendant testified, in substance, that when he made use of the razor upon McKinzey, he intended to cut him, thus inflicting a wound, but did not intend to reach his throat, nor cause his death; that when he struck at Mc-Kinzey with the razor McKinzey thew up his arm, thus striking and elevating defendant’s arm and causing the razor to strike the throat and inflicting a wound not intended. Dr. Dodson was called to see McKinzey after the infliction of the wound and before his death. The doctor made a careful examination of the wound, and, upon the witness-stand, gave a detailed description, showing the point of commencement and termination of the wound, its •curvature, its line of direction, the smoothness of the cut, etc.' He had also seen and heard the demonstration of the tragedy as given and made before the jury by defendant. He was called as an expert on rebuttal, and was asked, in substance, if that wound could have been made in the manner described by defendant, and he gave it as his opinion that it could not. This was objected to as not involving any question of science or skill, and that the conclusion was for the jury, and not for the witness. It must be •conceded that the question presented is close to the line, and there is some degree of force in the contention by defendant’s counsel, yet, taking all the circumstances into consideration, we are not prepared to say that the decision of the court was erroneous. In part, at least, the doctor’s observation of decedent may have been, and probably was, sufficient to justify him in forming an expert opinion as to the manner in which the wound was inflicted. It is perhaps true that any layman could form some opinion as to the question propounded, but it is probably equally true that, under the circumstances, the doctor’s expert opinion would be of greater value in conveying the truth.

Certain instructions to the jury were ashed by defendant, and given by the court, the court stating thereon that they were “ashed by defendant.” Exceptions appear to have been tahen upon that ground. We do not understand that there is any well-defined rule upon that subject with the district courts of the state, and can see no ground of prejudice to defendant resulting from the action of the court-. It is thought by some practitioners that it is preferable to have the jury informed that the instruction .is from the party offering them, that it will thereby have the greater-weight, etc. While it is perhaps better/practice to let all instructions given as being by the court, we know of no-hard and fast rule upon the subject. We find no prejudicial error in the action of the court in this behalf.

The instructions given by the court to the jury are criticised, but they are too long to be set out here. We have carefully examined them, and find that they are not open to the criticisms made.

It is insisted that the confinement imposed by the sentence is excessive. Defendant is a young man. He had fallen into a life of crime. The trend of rational modern-thought is that penalties imposed by the criminal law are-are not for revenge or the infliction of punishment, but for the protection of society and the reformation of the-guilty party. It is to be hoped that defendant may determine to abandon all thoughts of his course of criminal conduct, and, should he prove himself- worthy of executive-clemency, that clemency can be granted to him after a suitable time, but we do not see it to be our duty to interfere with the judgment of the district court, which is hereby

Affirmed.

Rose, J., not sitting.