*1 negligent or not said.Martin one or Heitman was more * * particulars estate, claimed the defendant of (Italics supplied.) fact, As a matter of other two paragraphs of instruction No. the trial court told the jury plaintiff in order recover, in effect “by preponderance required to establish evi- allegations each and all the material her dence, against petition estate, as set hereinbefore explained” again required plaintiff forth establish allegations petition” “all the material her (Italics any qualification. supplied.) without other language conclude that the used in instruction We No. impose erroneously upon defendant, a burden 15 did prejudicial manner to defendant. stated, heretofore For reasons we conclude erroneously vacated the verdict, court erro- the trial neously granted erroneously trial, new dismissed judgment plaintiffs Therefore, case. should be and hereby reversed, and cause is remanded with judgment reinstate the verdict and enter directions plaintiff. in favor thereon remanded directions.
Reversed plaintiff in error, v. State Latham, John Nebraska, error. 2d 522
40 N. W. 29, 1949. December No. 32634. Filed *2 Hayes, and Edward T. for Lovely plaintiff Joseph M. in error. General, E. Anderson, Attorney and H. Walter
James in error. Nolte, for before Heard C. Simmons, Messmore, JJ. Boslaugh, Chappell, Yeager, J. Boslaugh, defendant, to herein as referred Latham, John for the crime of robbery and sentenced convicted error to review prosecutes violence, force by and sentence. his conviction the record error because inquiry claims trial during the State him made of felonies, after, as he convictions previous claims, he had and without truthfully equivocation him answered the asked counsel for the State in reference to his convictions. The de- previous fendant was a of his defense of support witness examination him, and on direct against that he had four times by his counsel testified been defendant on cross-examination convicted crime. The of four if he had been convicted answered inquiry in the affirmative. felonies directly unequivocally ir- further in an The cross-examination was pursued regular manner but without proper objection defendant, conspiracy and it his conviction of developed duration sentences Iowa, imposed upon of two and that of four five years respectively, breaking, he convicted twice of but jail had been thereof concurrently sentences because ran imposed him at he wrong- with those served the time being confinement. of his fully place left that: (§ The statute R. S. 25-1214, 1943) provides R. con- “A interrogated as may previous *3 convic- for a but no other of such felony, proof viction thereof.” A defend- the record tion is competent except a subjects ant in a criminal case who becomes witness other Craw- the rules to witnesses. himself to applicable v. 421; Swogger 218 N. W. State, 629, 116 Neb. ford v. 116 416; State, v. 563, 218 W. State, Dunlap 116 Neb. N. limits prescribes 89. The statute 313, 217 N. W. Neb. initiated the State of any the scope inquiry of a defendant on cross-examination may be the defendant It of inquiry case. permits criminal of convicted previously if he was when he is witness affirmative, may he If the is in answer felony. convictions, if an number of such be asked end there. must correctly inquiry given, is answer incor- this regard If answer fact of remember, does he claims he if rect or may only be shown or convictions his conviction ex- statute does permit The thereof.” “the record 116 charges
ploration
or
of which the defend
previously convicted,
ant
the details thereof,
or the
imposed upon
purpose
the defendant. The
sentence
inquiry permitted by
restricted
statute is for
previous
may
fact of a
effect the
whatever
conviction
credibility
have on
defendant as a witness,
purpose
tending
and not
to show
for
that he is
engage
Duling,
prone
in criminal actions.
to
Bosteder v.
809;
557, 213 N. W. Mortensen v.
127
State,
115Neb.
Neb.
Keating v.
446,
557;
W.
67
560,
255 N.
Neb.
93
by authority
inquiry made
The
N. W. 980.
this stat
questions
confined to a
or
ute
proper
be
should
required
and the
should be
form,
witness
directly.
specifically and
Neither the cross-
answer
nor the
should be allowed
to wander
examiner
explain,
confined to the
but should be
limits
or
narrow
Vanderpool
the statute.
v.
94,
fixed
Neb.
Duling, supra; Sulley
605;
211 N. W.
Bosteder
783,
tion subject of the direct is the matter which examination explored may on cross-examination of the witness. Yards Co., Union Stock Neb. Zelenka v. Potts, re Estate of 144 Neb. 103; In W. N. W. N. properly sufficiently failed Defendant 2d 323. objection challenge by cross-examination. His claim of the cross-examination is without error because substance. cross-examination on was asked about immaterial to the issues in collateral
matters permitted to introduce the State was evidence case, disprove had said the facts were. what apparent procedure. purpose improper This was *4 lay to questions the State was argument foundation of such jury upon impeachment based an respect to immaterial with matters to false prove unworthy of belief in other matters liberty. testified to him vital aWhen witness on a matter cross-examined collateral to issue, subsequently he cannot as to his answer be contradicted party putting question. Vanderpool supra; Swogger supra. challenges correctness the ac- denying
tion of the district court motion for a new ground newly trial, which motion made on discovered evidence material to his defense which he diligence claims he could not with reasonable have dis- produced § covered and at the trial. 25-1142,R. R. S. 1943. employed John Robert Johnson was and worked at the White Market and was there at the time of the rob- bery, prosecution. of this These facts were represented known to counsel who the defendant at the Navy probably trial. Johnson was in the on sea duty trial, at the time of the and his name was not en- sergeant dorsed on the information. Jack Knudtson, a Safety Investigation Patrol, in the Nebraska Criminal viewing Bureau, testified that Johnson, after the de- hearing identify him fendant and talk, failed to him as robber, stated that he was not the man who com- robbery mitted the involved in this case, that he did speech did, defect and the have robber and that the man he did not look like who committed the rob- bery. had not these revealed facts to coun- McGowan, Robert sel for defendant. an assistant county attorney, the office testified that he knew jail with Johnson; he was at Knudtson when John- him talk; the defendant and heard son viewed John- not know that he did whether the son stated defendant only got glimpse robber; the robber hold-up; say that he would not time of the one at the way think the but he did not other, and that he did not talk spoke robber; like the Johnson at counsel for trial. An affidavit before Johnson time *5 the contains statement that he is of the a member S.U. Navy (Adak), and Alaska; stationed at Adok was in Omaha the in October 1948 and viewed de- company fendant in Jack Knudtson and Robert McGowan; that the defendant not have a defect did speech in his the man the such as who robbed White Market; that did not look like man who robbery; opinion committed and the defend- his grocery ant not the store. The was man who robbed the showing support that motion indicated attorneys for did that not know Johnson identify person had failed the defendant as the who robbery. committed the did not know John- Defendant anything concerning or or son, him, that he had had identified him the robber. The action of court as on a motion for a trial involves the exercise a new showing legal hearing at the discretion. The conflicting and uncertain as the motion was to what testify concerning the would de- John Robert Johnson with the crime if he fendant and his connection were diligence in There also a at- was of. witness. procure testimony. tempting to locate Johnson showing testimony by that Johnson There no by deposition presence or would be avail- could had. if another The action trial able trial was generally a situation will be disturbed. in such court Irrigation Valley Platte Public Power & Dis- Scherz trict, 2d 721. 151 Neb. 37 N. W. dispute case shows without record in this day p. m. the 27th of December two on
at about grocery store known as White’s Market men entered Military Omaha, Nebraska; one of Avenue at proceeded store; one front of the near the remained them the meat business was con- thereof where the rear George by show of violence caused ducted, and force business, of the meat Wanroe, who employed grocery Johnson, as who was Jack proceeded boy, icebox; one who to enter stock George the rear of the store there robbed Wanroe taking containing pocket; his billfold from his $50 the robber then shut the door and detained the two they men in the icebox until were later released customer. The offered the State tends to establish defendant, John Latham, perpetrated robbery. man who persons There were five robbery. in the at store the time Four were called testified, State and and each identi- fied the as the man who committed the crime. conflicting, evidence furnished contra- dictory, and irreconcilable with that of the State. The *6 steadfastly defendant asserted and in- maintained his during nocence. He that he was, testified December residing 1947, with his wife at 138 North 38th Avenue Boyd Omaha; had them; Clara roomed with robbery he was home with his wife at the time the in- part occurred; volved herein bery; that he no had the rob- George not rob Wanroe; did that he did not know the Market; location White’s and that at robbery the time fixed as the hour of the he was at his slight home. There was corroboration of the defendant. subject credibility The instruction on the of the given language: witnesses “Yet in this case contains this you right reject have no good reason, of the witnesses without should not do you so it unless find irreconcilable with the other testi- mony you presents which find to be true.” This previously exact situation condemned this court as prejudicial. State, erroneous and 39 N. W. 2d Kitts v. 151 Neb. 679,
283; 151 Neb. 284, Schluter W. 2d 396. N. judgment hereby should is reversed and
the cause remanded for a new trial.
Reversed and remanded. dissenting. majority opinion part I dissent from that which by using language quoted court, that the trial holds from its instruction on the credibility witnesses, committed re- prejudicial" error requiring versal. The dissent reasons are the same and my stated dissent to the sufficiently my majority opinion 396, Schluter Neb. 37 N. W. 2d will not be restated here. J., concurs in this dissent.
Ray McKelvey et al., appellees, Mills, Inc., v. Barton appellant. corporation,
40 W. 2d N.
Filed December 1949. No. 32671. *7 Stewart, Jr., W. A. Williams & Cline, Wright, for appellant. &
Beatty, Clarke, Morgan, Murphy appellees. Chap- Heard before Simmons, Yeager, C. JJ. pell, Boslaugh,