Marion v. State - 20 Neb. 233, 29 N.W. 911 (1886)

Rule:

A correct instruction given, or any instruction given on request of a defendant on trial, will not be held to be erroneous because an improper reason for the instruction is given. With the reason for the instruction the jury has nothing to do.

Facts:

Plaintiff in error Jackson Marion was indicted at the March term, 1883, of the district court for Gage county, for the crime of murder, committed on the 15th day of May, 1872. Upon trial he was convicted of murder in the first degree, and sentenced to be hanged. Marion appeals, questioning multiple jury instructions and admitted testimonies and pieces of evidence.

Issue:

Did the trial court err in giving instruction numbered nineteen to the jury?

Answer:

No.

Conclusion:

Instruction numbered nineteen is as follows: "The jury are further instructed that the burden of proof is upon the state to prove by competent evidence beyond a reasonable doubt, not only that the defendant killed the said John Cameron, but also that the defendant killed the said John Cameron, as charged in the indictment, with malice aforethought; and you are not authorized to presume from the fact of the killing being proven that the same was done with malice aforethought." To this the court added "changed by adding 'unless you find that the killing was done with a deadly weapon previously prepared.'"

It is insisted first that there was no evidence of a "weapon previously prepared," and that the change in the instruction was prejudicial error. The proof showed that the skull found with the decayed remains of the deceased presented evidence of having been penetrated by some instrument, presumably a leaden ball shot from a gun or pistol, and when the body was found there was a bullet inside the cavity of the skull and it was also shown that immediately before Marion and deceased left Warren's plaintiff procured from another a revolver, cleaned and repaired it for the purpose of taking it with him, and did so. These facts, with others, were a sufficient basis for the addition to the instruction of which complaint is made. The conclusion from the facts proved was for the jury. From them they might infer the previous preparation of the deadly weapon and its use.

It is also claimed that this instruction is erroneous for the reason that the court by it singles out and makes prominent the fact of the previous preparation of the instrument of death. This instruction will not bear the construction claimed. The rule evidently sought to be contended for is stated in Markel v. Mundy, 11 Neb. 213, which is, that undue prominence should not be given to one item of the evidence, but the Court knows of no rule of law relative to instructions which forbids the submission of a question of fact to the jury as is done in the instruction under consideration. No reference is made to any item of the evidence, nor is the attention of the jury called to the testimony of any witness.