90 Neb. 642 | Neb. | 1912
Lead Opinion
An information consisting of three counts was filed in the district court by the county attorney of Douglas county,-the first count of which charges plaintiff in error with having made an assault upon Thomas Dennison on the 22d day of May, 1910, _with intent to murder the said Dennison. No further specification of the manner of the assault is contained in the count. The second count is for the same offense, but contains the averment that the as
Testimony was introduced to the effect that on Sunday, May 22, 1910, at about 10 minutes before 3 o’clock in the afternoon, a suit case was discovered standing on the porch of Thomas Dennison; that a screw-eye had been screwed into the porch floor, and a string or cord projecting through a hole in the bottom of the suit case was tied to the screAV-eye. It is shown that a few minutes before the suit case was discovered parties were on the porch and no suit case was there. During the time, up to the discovery, persons were in the house, but they knew nothing of the suit case being placed there. A dog was in the house, and the witness Avho was within heard the dog growl or make some alarm, and she soon afterward went to the door and the suit case was seen.' The suit case was picked up by one and dropped to the floor, kicked over by another, picked up again by another and dropped down, and finally was left lying on its side on the porch floor after having been opened, when the parties all went away so leaving it. Later in the afternoon, perhaps about 6 or 7 o’clock, upon the return home of Mr. Dennison, who had been absent during the afternoon, certain policemen were called, who untied the string
Assuming, as we do for the purposes of this opinion, that the contents of the said suit case was taken to the police station, it is unfortunate that some of the sticks Avere not at once placed in the hands of a. competent chemist for analysis. It is insisted that the evidence is not sufficient to sIioav that the sticks were so carefully kept as to render it certain that those used in wrecking the Avail referred to were the identical sticks taken from the. suit case. It is apparent that the strictest care should have been taken in that regard. It is also unfortunate that the police officers allowed all to be removed from their charge and care and be destroyed in blasting the wall, if they were so destroyed. Some portion at least of the “sticks” should have been carefully preserved in safe hands and presented upon the trial, in order that the fullest and most careful examination might be then made. This Avas not done, and an element of uncertainty,-under the evidence, was presented that might have been'avoided. Certain officers and others Avho saw the sticks testified that they were dynamite, largely basing their judgment
As we have seen, the suit case must have been placed on Mr. Dennison’s porch by some one, probably at from 2:30 to 2:45 in the afternoon, while persons were in the house and on the same level of floor. Plaintiff in error is charged with so placing it. The question of his identity becomes a most important one. He is said to have been seen in the neighborhood of Mr. Dennison’s home the day and night of the day before (Saturday) and on Friday, two days before. It is shown that he was in the employ of an organization, known as the “Civic Federation,” as a detective, and that his duties were to discover and unearth violations of the law in Omaha and elsewhere, and the mere fact of his presence in that part of the city, if he were. present, might not raise any presumption that he was there for an unlawful purpose. It is also insisted that he was seen at and near the home of Mr. Dennison about the time the suit case was left on the porch, and one witness testified to having seen him on the porch, but saw no suit case, and did not see his face, except a side view. This witness also testified to having seen some one standing in the street in that neighborhood at about the hour of 12 o’clock, midnight, a night or two before the Sunday in question. His testimony is that he slept in an upper room, and, at the hour named, had occasion to arise to answer a call of nature, when he opened a front window of his room and from which he relieved himself. It was shown that there was á bath-room and water-closet nearly opposite his bed-room, across a hall of about three feet in width, the door of which was not more than seven or eight feet from the head of his bed.
We find it impossible to review all the evidence submitted to the jury without extending this opinion to an unreasonable length, and, as the cause will probably be tried again, it would be improper for us to do so, but these suggestions are made as calling attention to what seem to us to be more, or less vital questions involved. There was testimony to the effect that plaintiff in error had made threats against Mr. Dennison, claiming that Dennison had been the cause of serious losses to him. These were proper to be considered, but Mr. Dennison testified that he had never had any dealings or transactions with Erdman at any time.
The papers or wrappers around the “sticks” of the contents of the suit case were of the brand of a known manufacturer, the sticks being of a shape different from others and peculiar to the product of that factory, although not "unknown to the trade. The stone quarries at Louisville, in Cass county, were visited .by detectives, and it was found that the dynamite in use there was of'the make or brand referred to. It was also shown that one of the depositories of dynamite was some distance from the city of Louisville, and was not protected by being locked in the place of deposit. A short time before the Sunday on which the crime is alleged to have been committed, plaintiff in error was seen in Louisville, but the state offered no evidence that he was seen near where the dynamite of the quarrying company was kept, nor that any portion of the dynamite had been missed or removed therefrom. We must confess we are at a loss to see the materiality of that evidence. There is no shadow of proof that plaintiff in error was in Louisville for any improper or unlawful purpose, nor that he even knew of the location of the unprotected dynamite. Of a similar nature was the testimony of a trunk dealer in Omaha, who testified that
Miss Alma Stuft was called by the state as a witness on rebuttal. She was a member of the class of girls whose pictures were taken on Sunday, May 22. She was not called as a witness in chief by the state. The subject presented to her was as to the time when the pictures were taken. . As with others upon the same subject, she was uncertain as to the exact time, but gave her judgment, which fixed it later than what was claimed by the state. She was asked by the county attorney if she had not given a written statement to the city detective who called upon her. She answered that she had, but upon more mature reflection she was satisfied she had made a mistake in time, whereupon the county attorney proceeded to read to her, in the presence of the jury, certain extracts from the statement prepared by the detective in her presence. We copy the following: “Q. Did you make a statement and sign a statement about this? A. Yes, sir; I did. Q. I will ask you to look at this paper and state if that is the statement you made.” After some discussion, folloAved by a ruling in favor of the state, but without an
There is no suggestion that this witness is unfriendly. She simply stated that upon more “serious” reflection, after making the statement, she had been mistaken. She was not called by the defense, but was the state’s witness, Objections were made and overruled at every point in this examination. By this action on the part of the county, attorney he succeeded in getting before the jury the ex parte statement made by the witness to the detective in contradiction of her testimony while being examined by him. We know of no rule of evidence which will permit
A reporter for the Omaha Bee was called as a witness on the part of the defense. After testifying that he was-present at the time of the examination of the contents of the suit case, he was asked as to how many cartridges were in the pistol found in the suit case. His answer was, in substance, that it was impossible for him to remember the details of what he saw in making that examination; that he wrote out what he had seen and furnished it to the paper for publication; that his writing was accurately published, but the original-manuscript was not kept; that he could refresh his memory from the published article and testify to what he saw in the examination made, but that he could not otherwise do so, having no present recollection of the matter suggested by the inquiry. The court, upon objection, refused to allow the evidence, holding that the witness could refresh his memory only from the original memorandum. In Topham v. M’Gregor, 1 Car. & Kir. (Eng.) 320, the writer of articles in a newspaper testified that all the articles written by him were true, and it was held that the newspaper containing the article under consideration might be placed in his hands for the purpose of refreshing his memory, and that he might be asked whether, looking at the articles, he had any doubt that the fact was as therein stated. See, also, Hawes v. State, 88 Ala. 37; Clifford v. Drake, 110 Ill. 135; Commonwealth v. Ford, 130 Mass. 64; Jackson v. State, 66
A number of questions, arising upon the impaneling of the jury, as well as those upon and during the trial, are presented, but as the law of this state is well settled upon most, if not all, of them, and they may not occur in the further proceedings of this case, they will not be noticed. It is insisted that, under the statutes of this state, the facts stated in the information do not constitute a crime, but counsel have not seen proper to brief the law on that subject, and we need not discuss it.
The judgment of the district court is reversed and the cause is remanded for further proceedings.
Reversed.
Dissenting Opinion
dissenting.
I am unable to concur in the conclusion of my associates. By the majority opinion it is'held, as one of the grounds for reversing the judgment of the district court, that it was reversible error to submit to the jury the testimony by which it was sought to connect the defendant with the dynamite contained in the suit case which was placed on the porch of the Dennison home. It was shown by the testimony that the dynamite in question was contained in a particular kind of wrapping which was used only by the firm that manufactured that kind of explosive; that the only place in the" vicinity of Omaha where that kind of dynamite was being used was in a certain quarry at the near-by town of Louisville; that a quantity of that brand of dynamite was stored there in a place accessible to any one who might for any reason desire to obtain it. It was also shown that, a day or two before the suit case was placed on the Dennison porch, the defendant was seen at Louisville, near the place where the dynamite was stored, and his presence there was wholly unexplained. Now the state had introduced testimony tending to show that the defendant was seen with a suit case like the one in ques
The majority, as another reason for reversing the judgment of the district court, hold that it was error to receive the evidence of the trunk dealer of the city of Omaha that just previous to the time the suit case in question was placed on the Dennison porch he had two suit cases in stock similar to the one found at the Dennison home, that he missed one of them, and that neither he nor his clerks had sold it, so far as he knew. It is said that this evidence was immaterial and irrelevant, and was prejudicial to the accused.
It should be remembered that one contemplating the commission of the crime of dynamiting the home of another would necessarily observe the same secrecy in obtaining a suit case, or other receptacle in which to inclose his infernal machine, as he would in obtaining the explosive with which to charge it, and when it was shown that defendant was seen at or near the Dennison home with a suit case like the one in question, and which may have been the one which the dealer missed from his stock, it would seem that this circumstance was properly given
The third ground on which the reversal is predicated is that the court erred in allowing the county attorney in the examination of a witness to read to her excerpts from her former written statement, in order to refresh her recollection. The contents of the written statement was neither read to her in the presence of the jury, nor was the jury permitted to examine it. In other words, it was not offered or received in evidence. I am of opinion that this was not reversible error, but was in all respects in accordance with the correct practice and the well-established rule that a memorandum or written statement made by a witness may be used to refresh his recollection. I am unable to see how this was in any way prejudicial to the rights of the defendant.
The fourth reason for the reversal is that the court erred in not permitting the Omaha Bee reporter to use or read an article published in that newspaper to refresh his recollection of what he saw at the time the suit case in question was examined. As I read the record, this witness testified that he could not recollect what he saw or just what transpired at the time the suit case was opened; that he wrote an account of the matter at the time, which was published in his newspaper; that what he wrote was correctly published; that he had lost his original notes taken at the time, but he failed to state ■ that what he wrote was the truth of the matter, and therefore it would seem that the court properly refused to allow him to testify from the published article, because this was secondary evidence which- was not clearly shown to reflect the truth of the transaction in question. Again, this ruling could not have resulted in any prejudice to the accused, for the transaction was treated by the witness as so wholly inconsequential that the facts there disclosed made no lasting impression on his mind.
Finally, and in concluding this dissent, I feel constrained to protest against so much of the majority
For the foregoing reasons, I am of opinion that the judgment of the district court should be affirmed.