119 Neb. 16 | Neb. | 1929
In the district court for Otoe county, one Thomas Murray, hereafter called the defendant, was prosecuted on an information containing three counts. In the first count he is charged with unlawfully and feloniously forging a promissory note for $5,000, purporting to ibe signed by one Henry Kasbohm. The second count charged him with uttering such forged note with intent to defraud; while the third count charged him with wilfully and unlawfully hav
In this case, the petition in error contains 43 assignments of alleged error. In defendant’s printed brief, these are reduced to 12 in number, all of which are presented and argued in 10 propositions of law. Only those which are argued in brief of counsel will be considered.
The accused first contends that the trial court erred in overruling his plea in abatement, based upon the insufficiency of the preliminary hearing. More definitely stated, his complaint is that the evidence offered by the state at the preliminary examination was insufficient to warrant the order of commitment by which he was held for trial in the district court. What we conceive to be the correct rule by which to determine the sufficiency of the evidence to justify holding the accused to answer for a crime in the district court is clearly stated ¡by Holcomb, J., in the case of Jahnke v. State, 68 Neb. 154.
“When the quantity or sufficiency of the evidence to justify the holding of a person to answer for a crime in the district court is called in question by a plea in abatement, and it appears that there has been a preliminary hearing in form and substance, and that evidence has been introduced in support of the complaint such as to invoke an honest exercise of judgment or discretion * * * as to the order or judgment to be entered, and from which a fair legal deduction may be reached that a crime has been committed, and there is testimony tending to show that the accused committed the offense, and he is held to await trial in the ment would be unavailing.”
district court, a preliminary examination has been had within the meaning of the statute, and the plea in abate-
“A sheriff who is not the prosecuting witness nor the sole witness in a criminal case, but whose evidence is affirmatively shown by the record to be corroborative merely, is not, by the fact that he is called as a witness and his name, as such, is indorsed upon the information charging the offense being tried, disqualified thereby from performing the duties of his office; nor do these facts render a panel*22 of jurors selected and summoned by him, under direction of the district court as provided by section 9078, Comp. St. 1922, vulnerable to challenge.”
We find no error in the overruling of the defendant’s challenge to the second array of jurors.
Further, objection is made by the defendant to the court’s ruling on certain evidence offered through the witnesses Kasbohm and Shane. We shall first consider the testimony' of the witness Kasbohm.
Exhibit No. 66 was a letter written by the defendant to his cousin on March 24, 1927, containing a list of what purported to be accommodation notes, including the note which is the basis of this prosecution. Included in this list are two other notes, each for $5,000, said by Murray to have been signed by Kasbohm. Over objection of the defendant, the witness was permitted to testify that he never signed nor authorized the signing of any note such as the three referred to in this exhibit. It is insisted that this ruling resulted in the admission of evidence tending to establish one crime in the prosecution of another.
The defendant, by his plea of not guilty, put in issue everything which it was incumbent upon the state to prove under the information filed in this case. Guilty knowledge and intent were elements of the offense charged. It is in proof of these facts that the courts have gone farthest in admitting facts apparently collateral to the issue. Frequently motive and intent can be proved in no other way. The state in this case, by showing the note in the possession of the defendant, together with evidence that it was a forgery, presented some proof from which intent and guilty knowledge on the part of the defendant might rationally have been inferred. We know of no rule of law which precludes the state from offering additional competent corroborative proof. The single circumstance of defendant’s possession of such an instrument might possibly leave in doubt the secret intent and motive of the defendant. When viewed in connection with the other evidence disclosed by exhibit No. 66, and it was made to appear that at about the
Further complaint is made that the court, over objection of the defendant, permitted the witness Shane to give his opinion regarding the authorship of the note in question. The witness was offered by the state as an expert on handwriting. The defendant insists that he was not properly qualified as an expert and devotes much time to criticism of his testimony. The question of the qualification of an expert offered in court as a witness is a preliminary one for the court to determine. The weight to be given his testimony is a question for the jury, under proper instructions by the court. The trial court was evidently satisfied with the foundation for this testimony, and it is the prevailing rule that the decision of the trial court on the question of the qualification of an expert witness will not be disturbed by the reviewing court unless there has been a clear abuse of discretion. We find no such abuse of discretion in the instant case. Counsel for defendant in their brief have said much about the method by which this witness reached his final conclusions. This was a matter affording proper subject for cross-examination of the witness, but went only to his credibility and the weight to be given to his testimony.
“You are instructed that the defendant has not testified in his own behalf in this case, as he had a lawful right to do. Nothing must be taken against him because he has not so testified.”
This identical instruction has been considered by this court in the case of Ferguson v. State, 52 Neb. 432, and it was there held that the giving of such an instruction is not reversible error. Defendant points out that this instruction violates section 10139, Comp. St. 1922. This statute was given full consideration by this court in the case last above referred to and we are heartily in accord with the views there expressed. The instruction given by the court in this case was a cautionary instruction given for the benefit of the defendant and designed to prevent the jury from indulging any inferences prejudicial to him from the fact that he did not give testimony in his own behalf. If there is any real ambiguity in the first sentence of the instruction, the last certainly removes all uncertainty as to the meaning the court conveyed to the jury. It may further be said that, if the defendant was not satisfied with the form or substance of this instruction, another should have been tendered the trial court as a requested instruction. We see no merit in this objection.
The next assignment of error presented by this appeal relates to the manner in which the jury were guarded in the closing hours of the trial, after the case had been finally submitted to them. Defendant complains that, after the jury retired to deliberate, they were not kept together as the law requires, but were permitted to separate in different rooms at the hotel on the last night before the verdict was returned. It is pointed out that, under the decisions in this lítate, a presumption of prejudice arises ¡by reason of a Separation of the jury, and that the state in this case has failed to present sufficient competent proof to establish the purity of the verdict. It appears from the record that the
“Whether a motion for a new trial in a criminal case, based on alleged misconduct of jurors, should be sustained rests in the sound discretion of the trial court, and its ruling on such motion will not be disturbed unless an abuse of discretion is shown.”
By appropriate assignment of error, the defendant finally presents to this court the question of the sufficiency of the evidence to sustain this conviction. . Viewing the testimony as a whole, we find it sufficient in every way to establish the guilt of the defendant beyond a reasonable doubt. In fact, the verdict of the jury in this case is the only verdict which
“I had to get this money to keep things going and if there is any way at all that you can get the two due this month renewed without letting Kasbohm or J. P. Baker know, wish you would. You will find the amount of the Kasbohm notes to my credit as Special and Trustee $10,000 and*27 $5,000. The others have the excess loans, etc., to take care of them.”
Other important statements appearing in the letter follow:
“You will find everything in my box in an envelope addressed to you—which will explain everything. Believe if you could get Henry & Earl to put enough money into the bank to pay for my stock you could continue to charge off those from loans that we don’t expect to get anything out of. Hope you can arrange it some way so you can continue. I have worried my head off for more than a year but looks like no other recourse now. Wish you would try and keep this to yourself as much as possible and see if you cannot arrange things so that the bank can run. I expect to go south somewhere for the present but some time you may hear from me. God knows how I have prayed that this might be averted but seems to no avail. As for my family it is worst of all but you can help Lou to dispose of the home and advise her to go out to her Uncle Jno. Barsley in Wash, as she has so often said she would like to go there. I don’t remember anything else now but if I should will write you again. Try and keep this all to yourself if possible. I am going to say farewell wish you success. Don’t know how far I will go south as I don’t have much money, but am going to strike a job at something. I am lost for the present and keep it to yourself.”
This letter was signed “Your Cousin Tom” and contains other statements fully as significant as those quoted. It will be remembered that Kasbohm in his testimony denied ever signing or authorizing any note such as those referred to in this letter, and an audit by an examiner for the guaranty fund commission reveals that the note register of the Dunbar State Bank shows no loan of $5,000 to Kasbohm and contains no record of any such note. The records of that bank do show that the defendant’s bank received a credit from the Merchants National Bank of $5,000 on the alleged forged note.
To us, further discussion of the evidence in this case
On a careful examination of the entire record in this case, we find no error prejudicial to the substantial rights of the defendant, and the judgment of conviction is accordingly
Affirmed.