Thе first and second counts of an information filed in the district court for ' Douglas County respectively charged defendant with-burglary and possession of certain described instruments or tools with intent to commit a burglary. A third count therеin charged that defendant was a habitual criminal: At arraignment, defendant
Defendant appealed to this court, and his brief assigned as error substantially: (1) That the verdict was contrary to law and not sustained by the evidence; (2) that the trial court erred in admitting evidence of the State relating to alleged confessions made by defendant; (3) erred in holding, as a matter of law, that such confessions were voluntary, and refusing to submit that question to the jury as one of fact for its determination, as requested by proffered instructions and otherwise throughout the trial; and (4) that the trial court erred in giving instruction No. 19 relating to credibility. We sustain the third and fourth assignments.
Evidence in the record discloses that the State аdduced competent evidence from which a jury could have reasonably concluded as follows:
On December 22, 1947, at or about 1:20 a. m., after the barroom in the South Omaha Eagles Lodge building had been searсhed, closed, and locked, a burglar alarm installed therein sounded at American District Telegraph headquarters. Police were called, who drove to the building, where outside thereof they exchanged shots with аn unidentified man who fled from the scene and escaped in the darkness down an alley between buildings. A window on the east wall of the semibasement was found to have been opened, at the foot of which were two
At command of an officer defendant stepped оut, hands raised. The pistol was seen by such officer projecting from defendant’s pocket, and as defendant reached for it, the officer struck him on the head with a revolver, thereby producing an injury or laceration of some proportions from which blood flowed down over his face and clothing. The loaded pistol in defendant’s possession was taken from him, and he was placed under arrest. Thereafter police officers placed defendant face down on a pool table in spread-eagle fashion, and he was searched, Blood flowed from his head wound down on the table, and in a few moments he wаs removed therefrom and laid in the same manner on the floor. While in those positions, defendant was plied with questions by the officers, and voluntarily, without the use of any force, threats, or fear, gave answers, confessing that he broke into the premises through the window heretofore described, identified the person by name who fled from the scene as his accomplice, identified the cap found as that of his accomрlice, admitted that the kit of tools was his own, which he had brought to the building, and admitted ownership of the pistol, telling where he had purchased it sometime previously.
On the other hand, defendant adduced competent еvidence generally conflicting, contradictory, and irreconcilable with that adduced by the State. We do not deem it necessary to recite such evidence at length,
In the light of the foregoing circumstances, we conclude that there was sufficient evidence to sustain the verdict.
Of course, that conclusion rests basically upon the admissibility of the evidence relating to defendant’s alleged confession, and, as hereinafter observed, the final force and effect of such evidence depends upon the manner in which the issues involved therein were decidеd or submitted by the trial court.
We turn then to the question of admissibility. In that connection, it was said in Holthus v. State,
In that regard, the question of whether or not in the first instance the State has laid a proper and sufficient foundаtion for the admission of such evidence is one of law for the court, and if- the court determines as a matter of law that no sufficient foundation has been laid, then the confession should be rejected, but where thе confession is received in evidence, its voluntary character is still a question of fact to be determined by the jury. Cramer v. State,
When the State in the case at bar offered testimony relating to defendant’s allеged confession, his counsel opportunely and appropriately objected to its admission for the reason that no sufficient foundation had been laid, and requested that all the evidence relating to foundation therefor, and the nature and character of the statements allegedly made by the defendant, should be first adduced out of the presence of the jury, as approved in Schlegel v. State,
At the conclusion of such hearing, the trial court, as a matter of law, did not err in holding that the State’s evidence was admissible. However, over defendant’s repeated objections, the trial court did erroneously hold, as a matter of law, that defеndant’s confession was voluntarily given, without submitting that factual question to the jury. The evidence thus adduced, in the absence of the jury, was not read back to it upon the jury’s return to the courtroom, although such evidence wаs all sub
At the conclusion of the trial defendant timely requested instructions Nos. 6, 10, and 12, proffered by him, which offer was refused by the trial court, who gave no instructions whatever to the jury upon the issues presented or thus requested to be submitted. The effect of the requested instructions was to submit to the jury, as a question of fact for its determination, whether defendant’s alleged cоnfession was voluntary as claimed by the State, in which event it should be considered as any other evidence, or whether it was obtained by force, threats, or fear, as claimed by defendant, in which event it should be wholly rejected and disregarded by the jury. We conclude that the refusal to submit such issues was error prejudicial to defendant, which conclusion is supported by the following authorities: Heddendorf v. State,
The applicable rule is that where the trial court properly admits evidence of a confession challenged as involuntary by defendant’s evidence, it is prеjudicial error to refuse to submit to the jury for its determination, under appropriate instructions, the factual question of whether defendant’s alleged confession was voluntary, in which event it should be considered as аny other evidence, or whether it was involuntary, in which event it should be wholly rejected and disregarded.
Instruction No. 19, given by the trial court, relating to the credibility of witnesses, did not in any manner submit the foregoing issues to the jury, and if this instruction hаd been proper in form and substance it could not have cured the foregoing prejudicial error. Further, upon the authority of Schluter v. State, ante
Other alleged errors were presented in oral argument to this court, but none of them were assigned as error or supported by any cited authority in the brief. An examination of the record discloses that none of such alleged errors were plain errors unassigned and prejudicial to defendant. It has now become elementary that they will not be discussed.
For the reasons heretofore stated, the judgment of the trial court is reversed and the cause is remanded for new trial.
Reversed and remanded.