*1 The omits a description record of the items defendant lube, used. such as tar and consumable Some, evi- disbelieved defendant’s goods. necessarily dence. under have Otherwise instructions would found amount less than total of claim. plaintiff’s No shall reversed for an error that judgment does not affect the substantial rights of the adverse party. 25-853, R. 1943. The § R. S. contention of defendant tafeen. well judgment affirmed.
Affirmed. L. Nebraska, State v. David appellee, Rice, appellant. Poindexter, of Nebraska, appellee, State v. Edward appellant.
Frank B. Morrison, Thomas Sr., Kenny, M. Bennett Hornstein, J. Patrick Green, G. and David L. Herzog, for appellants. H.
Clarence and Melvin Attorney A. Meyer, General, Kammerlohr, K. for appellee. J., Spencer, Boslaugh, White, Smith, before
Heard C. JJ. McCown, Clinton, Newton, J. Clinton, The defendants, David L. Rice and Poindexter, Edward joint
in a by jury trial, were convicted murder in degree bombing first August in the death on Larry 1970, of an Omaha officer, D. Minard, Sr., penalty imprisonment. and thе fixed the at life appeal assignments On this of error relate to the fol- lowing: (1) Denial the trial court of motions of both suppress defendants to evidence seized a search at (2) Parker Street 1970; Omaha on denial the trial court motions both defendants suppress analysis clothing the results of scientific (3) taken from each them their arrests; in- jury; (4) overruling by structions to the the trial objections court of to admission in evidence of seven purported certain newsletters of the United Front Against Fascism and National Committee to Combat organizations, Fascism, local militant black denial of related motions to strike for mistrial. Errors *3 alleged also were in connection with instructions re- separate pro lated to said exhibits. In a se Poin- brief assignment dexter makes an error that evidence is insufficient to sustain the verdict. assignments
We will note each error separate parts opinion order in of and make such may reference to the evidence and other matters as required from time to time be in consideration assignments. briefly first, We set forth however, some necessary concerning of the information factual death of Officer Minard. August early morning
In the 17, 1970, hours of police department city of of Omaha received a telephone originating purportedly call Ohio 2865 represented girl which call of a Street, cries or screaming help coming from a woman were vacant police next house door Ohio dis- 2867 Street. patcher relayed the information radio and several including patrol responded call, that of cars
731.. Officer including Minard. Certain officers, Minard, en- tered the house at doing Ohio 2867 Street so stepped noticed lying over a suitcase side its doorway. near the being While a search conducted explosion killing standing occurred, Minard who was near the apparently inspecting visually suitcase and injured by otherwise. Other officers were the ex- plosiоn. analysis Scientific of the ex- debris plosion dynamite established that the source was con- supported tained within the suitcase. Other evidence dynamite the conclusion that the suitcase contained a booby trapped explode bomb which had been and set Subsequent investigation by when moved. intensive police department apprehension led of Duane age acknowledged planter Peak, 15, the deliverer and booby trapped suitcase and maker of the false telephone report help of the cries for at 2867 Ohio Peak Street. testified for the State and defendants instigators were convicted as the of the crime.
I. procured 22, 1970, On officers search authorizing Street, search of Parker warrant the 2816 the seizure Rice, residence David L. of: “Dynamite con- and devices which could used to persons injury struct devices could cause damage property.” The search conducted and propеrty, a result some of items of trial, evidence at which were introduced into Dupont Strength seized: “14 Red Cross Extra Sticks Dynamite, Blasting Caps., DuPont Elect. 50%. Blasting Cap. pcs MS 1 DuPont Elect. assorted pr Battery. 1 Marathon RR wire. Volt #6 #499 long dykes. 1 Pliers. 1 Homecraft wire CeeTee Co. *4 orange Japan, grips. dyke, 2 made in nose % X1X% foregoing magnets.” permanat evi- inch It was suppress directed. to dence motions which hearing Prior to trial held on the motions was 732
suppress, parties, by evidence was adduced all and the trial court denied the motions. defendants assert and search seizure provisions
was in violation of the Fourth Amend- ment provides: to the Constitution of the United States which right people
“The to be secure in persons, papers, against houses, and effects, un- reasonable searches seizures, and violated, shall be upon probable and no Warrants shall but cause, issue, supported by particularly Oath or and de- affirmation, scribing place persons searched, and the things to be seized.” upon
The defendants assert that the affidavit the search warrant was issued invalid in that was Supreme does not meet the standards laid down Aguilar Court of the United Texas, States v. Spinelli 108, U. S. 1509, 723; S. Ct. 12 L. Ed. and 2d v. United States, 393 584, U. S. 89 S. Ct. 21 L. They 2d Ed. in the 637. further contend evidence seized should search have been excluded under the Mapp doctrines U. Ohio, S. 81 Ct. 1684, 6 L. 933; Ed. 2d R. 84 A. L. 2d and Ker v. Cali- fornia, 374 U. S. S. Ct. 10 L. 2d 726. Ed. prepared
The affidavit one was of the officers in charge of the search while 2816 Parker Street under surveillance other It done officers. un- pressure investiga- der the intensive of the extensive bombing during tion a time when working day day. the officers were 18 hours after complaint The affidavit as follows: “The Sgt. Sgt. affidavit Jack Swanson, R. Pfeffer day duly being this 22 first 1970, who sworn, upon says: oath grounds just
“That he has and reasonable believe, kept believe there concealed or does following property, described, hereinafter to-wit: Dynamite could used and devices which he to construct injury persons cause dam- devices which could *5 age property. illegal weapons Also which he stated against should be used Police . . . Officers. property kept “That on, said concealed or or in, following place person, about the described to-wit: story A one white house on Parker Street at frame Douglas County, 2816, In Omaha Nebraska. property custody
“That said is under the control or of Lewis RICE, Minister Information, National Davidi Committee to Combat Fascism. grounds “That the are the for issuance of property a search warrant for said reasons for his belief, David Rice to-wit: is a known member of the National Committee to Fascism, Combat which ad- killing vocates the violent Police A violent Officers. killing a Police occurred, Omaha and ar- Officer membership rests made the NCCF. from past keeps have been We told in the that RICE ex- plosives, illegal weapons, residence, at his and also against which he has said should used Police Officers. authorizing night-timе “A warrant search is re- quested Nighttime because when was se- information property may cured, and the be removed. prays may
“WHEREFORE, he that search warrant according issue to law.” confusing
The confused and state law search recognized. widely concurring opin- seizure is See dissenting opinion ion of Harlan and Justice of Justice Coolidge Hampshire, White in v. New 403 U. Landynski, 564; 29 L. Ed. 2d Fourth S. Ct. Standards, B. J. cite
Amendment 45 Conn. 330. We on the’ matter covered section of to, refer opinion, only pertinent. cases most those which seem supra, Aguilar the court held Texas, that a was invalid because of a deficient af- warrant search the substance of the affidavit fidavit was as where “ have ‘Affiants received reliable information follows: person credible and do believe that heroin . . . from a kept being narcotics the above other . . . premises purpose described for the of sale and use con- ” trary provisions of the law.’ The court held may hearsay, that an affidavit be based on but magistrate who was asked to issue the warrant must the affidavit be informed of some of the under- lying circumstances the informant con- which cluded the narcotics were where were claimed underlying to be and some of the circumstances from affiant concluded the informant was *6 lacking require- reliable. The affidavit in these solely upon hearsay ments and since it was based testimony of the informant it was invalid. Justice Goldberg, writing majority, for the stated: “. . when . upon magistrate’s, a search is based rather than a probable determination of officer’s, cause, the reviewing accept ‘judicially courts evidence of a will less competent persuasive character than would have justified acting an officer in on his own without a (citing warrant, 257, Jones v. United 362 U. States, S. 233), 270, 80 Ct. 697, S. L. Ed. 2d judicial 78 A. L. R. 2d long sustain determination will as so (the magistrate) ‘there substantial basis present probably conclude narcotics ....’” Goldberg quoted Justice also from Johnson v. United Stаtes, 333 U. 13-14, S. S. Ct. 92 L. Ed. “ point as ‘The of the Fourth follows: Amendment, grasped by not which often is officers, zealous is not support that it denies enforcement the law usual inferences reasonable men from draw evidence. requiring protection Its consists in that those inferences by magistrate neutral be drawn and detached instead being judged by engaged the officer in the often ” enterprise competitive ferreting out crime.’ Spinelli the defendant was convicted on an inter- In charge gambling the use with of evidence seized state by affidavit of a warrant. The stated the virtue FBI “ by informed a confidential reliable ‘been inform- had “ ” ‘operating that the accused was a handbook and ant’ ” accepting wagers by telephones.’ ... means of the also affidavit set forth that the defendant had been un- by days, der surveillance the FBI for 5 had traveled apartment entered interstate, two which had telephones. gambler It further stated he was a gamblers. and an associatе The affidavit was held defective because did include information on re- liability required Aguilar, and because the in- formation relative to the surveillance was not corro- only might borative but indicative of acts which be perfectly innocent. The court “The said: affidavit, Aguilar, then, falls short of the standards set forth in Draper, give and our other content decisions probable holding the notion of cause. as we have done, proposi- we do not retreat established only probability, prima tions that and not a facie showing, activity prob- of criminal standard (1964); cause, Ohio, able Beck v. 379 U. S. probable
affidavits cause are tested much less rigorous governing standards those than the admissi- bility McCray trial, of evidence at U. Illinois, 386 (1967); probable judging issuing 300, 311 that in cause magistrates by niggardly are not to confined limita- tions or on the use restrictions of their common *7 United sense, Ventresca, States v. 380 U. S.
(1965); probable and that their determination of cause paid great by reviewing should be deference cоurts, (I960).” States, Jones v. United 362 U. S. 270-271 touching sufficiency case we have latest found of the affidavit United v. Harris, States 403 U. S. 91 Ct. 29 Ed. 2d 723. That case L. involved nontaxpaid liquor. charge possessing The affidavit, a report, in the summarized headnotes stated: reputation respondent investigator had a with the “. . . being nontaxpaid years as a trafficker in over four spirits; during that time the local constable distilled whiskey in an illicit abandoned house un-' located had control; respondent’s on the date of the affidavit der from information oral affiant had received sworn per- prudent person to a the affiant found be a whom his name life should feared for his son, who purchased illicit whis- revealed, that the informant had period key exceed- for a described, from the residence recently ing years, weeks; that most two two within person of another who the informant asserted he knew bought days; whiskey the house two from within such whiskey knowledge personal that such that he outbuilding; that he had consumеd in certain a outbuilding nearby respondent go to another seen persons.” Analysis whiskey shows obtain above affidavit contained two for other
things: (1) Alleged fac- alleged “pru- informer to be information from an tual reputation (2) a with accused had dent,” nontaxpaid investigator dis- “trafficker affiant as a spirits.” held sufficient. The affidavit was tilled Aguilar, pointing distinguished out court in that case solely that affidavit based held that there: “. . . we report hearsay must informant of an unidentified on the underlying from circumstances forth ‘some set that the informant . . . was concluded which the officer ’ ” The court “reliable.” information “credible” or his policeman’s a conclude said: “We cannot also reputation something suspect’s knowledge of a — impressed frequently policemen a factor that know ‘legal Frankfurter —is Justice technician’ as Mr. such a upon everyday ‘practical life’ consideration not a properly rely magistrate) may (or an officer tiр. reliability assessing To the of an informant’s proba- prohibits Spinelli the use of such extent support prior cases, in our it no information, has. tive pre- apply logic, experience decline and we relying magistrate enforcement law clude a suspect’s reputation.” knowledge of a officer’s “ap- legal reputable stated that Harris scholar has A eroding the go force of pears in the direction of far p. Spinelli.” J., note Aguilar 45 Conn. B. 345. *8 analyze We now the affidavit here considered in or- light foregoing der to determine in the of whether finding probable it contains a “sufficient basis for a by magistrate. cause” We conclude does.
It already police recites, as we have that the noted, department past had in the been informed that Rice kept explosives at his residence and that he had said they against police should be used officers. These al- legations standing alone insufficient, would be but gain credibility forcе and from the additional allegations upon personal knowledge based of the police department (1) Omaha and the affiants: David L. Rice is the Minister of National Information, Com- (2) mittee Fascism; he Combat is a known member organization killing “which advocates the violent (3) Officers”; of Police the death aof officer by (by explosive trap booby violence of an means —a fact so public at the time notorious in Omaha even the knowledge fact). explosives itof as a That neighborhood fact were in was evidenced alleged use in the bomb. The facts here over and above stronger just the the information much informer’s than reputation suspect which the court found sufficient Harris. Supreme
We call attention to the United States Court’s Spinelli Draper reference v. United States, 358 ap- U. S. S. Ct. 2d L. Ed. and its proval probable that case on “the as viable notion of upon probable That case arrest cause.” was a cаuse upon warrant, based information without identified from an un- given informant lohose information force subsequent giving occurrences informa- prior important the arrest. It is tion but because the by its terms Fourth Amendment makes no distinction probable probable cause for arrest and between cause important, per- seizure. More search and that case probable proof for arrest cause in search mitted parole testimony, therewith thus in connection ef- *9 replacing, necessity feet the for This an affidavit. long-established practice. accordance with common law given description In that case the had informer suspect, including clothing the pected he the was ex- which luggage, his also information and and wear, probably train he as to the on would arrive at which the Denver railroad station that he have would possession. drugs in his court held that fact the police the officer Denver when arrived at the rail- alighting stаtion there from the road he saw train as person predicted by informant a met de- the who the scription appearance, physical luggage as to attire, given by gave credibility the verified informant, tip' do not see how, the and made the arrest valid. We “probable it can cause,” that case relates be dis- as tinguished position at hand. Rice’ from the one as organization key openly officer and member of an killing police advocating the officers and violent his advocacy accompanied by of this end own known the judgment, bombing itself far more our is, indicative probable for search than the cause were circum- Draper apart arrest, circumstances, for stances case, information in the the informant’s simply the indication neutral far as of crime as is con- cerned. worthy of mention in connection the with
It is explosives and at 2816 Parker devices Street for search simultaneously there was conductеd warrant, under therewith police Duane Peak for for whom a search had at time department of a warrant Omaha degree charge first murder connection on a arrest Officer At that death of Minard. time with following department additional informa- police reports by the introduced into evi- shown tion as suppress: (1) hearing on motion to On dence morning Donald W. Peak, having Peak, was arrested and after Duane brother warnings, voluntarily given the Miranda made a been police. (a) statement directly, statement This clearly, conclusively and almost Duane identified Peak person physically as who delivered the bomb placed entrapping phone (b) call; Donald attributed membership (some- his Duane’s acts to times in the NCCF Panthers); (c) to in referred record indi- probably cated that the bomb had been made Poin- organization; (d) dexter as head that Duane by headquarters lay (2) had been told “to low.” Item (1) (a) above was corroborated five other identi- persons fied from whom statements had been taken police department. (3) An informant, identified knowledge, day based his own stated that on the bombing, David Rice had L. “. said, . . the interpreted action was a late.” The week informant *10 referring (4) bombing. the comment to the as Rice and organizers Poindexter leaders were of the NCCF. (5) tape recording A of the voice which had made the phone entrapping call was identified as that of Duane (6) p.m., had Peak. Poindexter been arrested about 6 (7) to declined talk. Personal knowledge police department that Rice had made party led to newsletters statements conclusion outspoken against advocate of that he was violence reports (8) (plural) police officers. There were explosives (plural) that Rice stored at individuals his (9) at Parker Street. home 2816 Literature had been headquarters containing of the NCCF at the “di- found rections to make bombs.” on how infоrmation was at
All of this introduced the hear- Draper suppress. ing to motion v. States, on the United Whiteley supra, v. 401 U. Warden, S. 91 S. Ct. appear 306, and other 2d cases L. Ed. to 1031, 28 us support proposition may affidavit be to testimony by of additional supplemented evidence known police. point up we have treated the search While though both defendants Parker Street had 2816 question, standing Fourth Amendment to raise holding specific Poindexter has under our standing question. He no to raise the evidence shown hearing interest either the at trial no claimed give premises property such as him or the seized would suppres standing. principle is that “The established product Fourth Amendment violation of a sion of urged rights successfully only those whose can itself, not those the search who were violated aggrieved damaging solely by the introduction of evi Coconspirators codefendants have ac been dence. standing.” special Alderman v. States, no United corded point Ct. L. Ed. 176. 165, 89 S. 2d We 394 U. Poindexter chosen he had so could at out hearing suppress have testified to on the order such given standing, have him as would and his an interest against testimony been him could not have used at States, 390 U. S. United trial. Simmons 1247. L. 2d 19 Ed. S. Ct. 967, doing quite in this case the officers were clear It good very faith follow the mandates best their Amendment. At Fourth the time affiants at 2816 Parker door before Street came first response warrants, there obtained no They could, however, see the television knocks. to their They someone concluded was there but was on. set being ignored. requests fact that going by police reports is verified set was television companion of Rice and a brother of statements place Parker Street appeared while the who *11 persons explained ap- These under surveillance. pearance they thought stating place being was highlights possibility burglarized. occurrence This explosive bombing material. The and of of removal (1) through (9) listed information above items might exigent possibly circumstances indicate justified search even without a warrant have dangerous highly nature the material light possibility and the bombings continued if the sus- pected explosives were not seized. Nonetheless officers apply took the to time for a search warrant though they might even premises jus- have entered the tifiably under the terms of for the arrest warrant looking -Duane Peak for whom were also that time. opinion
This interpreted by should no wise be law enforcement as a relaxation officers this court of the rules Mapp laid down us for Ker. and Search pursuant preferred to warrant is to be much search to without applied warrant, and warrant should exceptions applicable exigent absent to circum- recognized stances exceptions. other and Affidavits support of warrants should inclusive, accurate, be as complete reasonably possible. as is
II. previously As pursu- was noted, Poindexter arrested August jail. ant to on warrant taken August cothing On 24, 1970, his was taken from him given jail clothing. and he Shortly was on thereafter day clothing Treasury same was delivered Department agents. Following the search 2816Parker Street a warrant issued for the was arrest of Rice. He voluntarily thereafter came jail, placed clothing was under arrest. His was shortly also taken from him and on the same thereafter day given Department agents. Treasury was the case of each of the defendants clothes were Washington, analyzed by government taken to D. C., dynamite chemists, Each traces of were discovered. suppress defendant results. The moved motions were denied. illegal
It is that Rice’ arrest contended because upon it was based unlawful search of 2816 Parker already disposed has Street. This contention of. been It also contended that the examination of the cloth- ing in violation of the Fourth stand- Amendment
742' against
ards and seizurе because unreasonable search subsequent scientific examination of search and it to arrest because arrest, was not an incident of the there nowas search warrant. primarily upon States,
Rice relies
Brett v. United
(5th
1969).
court,
412
Cir.,
F. 2d 401
In
case
a
sus
two
one
held that a
of
search
decision,
pect’s
days
clothing
arrest
3
after his
without warrant
clothing
and the time
taken from him violated
his
should
the evidence
Fourth Amendment
suppressed.
have
Supreme
No cases of
United States
been
directly applicable
Court
are cited.
State
upon
594
States,
Golliher
362 F. 2d
relies
United
v.
(8th
1966).
said: “Subse
Cir.,
In that
the court
case,
quent
appellants’
of their
arrest,
were relieved
clothing.
subjected
clothing
scientific tests
matching
microscopic particles
particles
which disclosed
bag
at the scene
taken
officers
from a
discovered
persuaded
of
offense.”
to follow the deci
We are
of
are
sion
court in Golliher
reasons whiсh
for the
opinion:
set forth in the
extracts from that
clearly
“The
does
delineate be
Fourth Amendment
not
illegal.
legal
are
searches that
those that
tween
It
particular
prohibits
only
the unreasonable with each
being
circumstances.
case
its own facts and
decided on
83
Ct.
California,
Ker
State
374 U. S.
S.
23, 33,
(1963);
States, 364
1623, 10 L.
2d 726
Rios v. United
Ed.
(1960);
“In society’s con- weigh interest must also reasonable we note that tinuing first allow such searches.. We to chips, paint particles, examination dust scientific necessary part widespread a stains, etc., blood deny en- investigation. police we Were scientific gather right evidence forcement officials weapon necessary custody, actually accused an destroyed. largely would be detection arsenal announced Supreme has years Court In recent de-emphasize necessarily principles Constitutional the use of sup- same interrogation, time, at the and, investigation. Escobedo encourage posedly scientific 12 L. 84 S. Ct. U. S. Illinois, v. State of U. S. Mallory States, 354 United (1964); 2d 977 Ed. prac- (1957). aAs 2d 1479 1 L. Ed. 449, 77 S. Ct. enforcement possibly insist that cannot matter we tical investigation at rely upon scientific officials integral part scientific of this deny them time same potential. diligent protection we must be True, in our rights of the accused, basic of an but likewise we protecting must society not be derelict in from the rav- ages activity. extremely of criminal must care- We completely ful not disarm the enforcement officials weapons necessary of the to maintain ordеr, which mercy turn would leave us all of the unhindered uphold appellants criminal. Were we in this case bloody shirt worn into the station suspect kept eyes murder jury. would be from the folly. deplorable To us this would be Therefore, propose we do not to initiate a rule that would dictate patently unjust such result. . . .
“Although the Constitutional issue was raised, recently approved we per the seizure of the arrested clothing sons’ comparison and the admission of scientific McNeely evidence found thereon. States, v. United (1965). presented F. 2d 913 when Even with the Con stitutional all the cases of which we are aware issue, specifically upheld, have ity grounds, on various the valid seizing clothing worn the arrested indi *14 subjecting vidual and the same to scientific tests later into evidence. States, admitted Robinson v. United 109 App. (1960) U. S. 22, D. 283 F. 508 2d cert. C. denied 364 U. 81 S. Ct. 5 919, 259; S. L. Ed. 2d Whalem v. 282. 1965) (D. States, 346 F. 812 United 2d C. Cir. en banc 862, 124, 382 U. 86 cert. denied S. S. Ct. 15 Ed. L. 2d (7 1958) 100; F. Guido, United v. 251 1 States 2d Cir. 950, 915, cert. denied 356 U. 78 Ct. 2 S. S. 2d Ed. 843; L. (D. Supp. 1965); Hancock, Nelson v. 239 F. 857 N. H. Margeson, (D. Supp. United F. States 246 219 Me. v. 1965); (Mo. 1960); 331 State S. W. 2d 521 v. Menard, 303, Phillips, (1952); 262 55 2d State v. Wis. N. W. 384 (Ark. Sheppard 1965); People State, v. 394 W. 624 S. 2d App., (1965); Rptr. v. Post, Cal. 47 Cal. 96 State v. Shaw. (1963). 573, 123 N. 2d 11 W. Because Iowa imperative above, feel it is: of the reasons stated we long authority. It is our that we follow list clothing appellants validly conclusion that the seized as an incident to their lawful arrest and that the admission of the evidence found thereon did not vio- rights late their under the or Fifth Fourth Amendment.” argued toAs it is further Poindexter, that his arrest was unlawful because the warrant his arrest was probable without cause and therefore issued or the seizure taking clothing of his likewise He unlawful. upon Whiteley relies v. Warden, 560, U. S. 91 Ct. 28 L. 2d 1031, 306, decided March Ed. where Supreme Court of the United States held that a complaint alleging sworn the commission aof crime was not sufficient basis to issue arrest warrant judicial issuing that supplied, officer the warrant must support
with sufficient information an inde pendent judgment probable cause exists for the acquired or that the warrant officers themselves havе additional information which is corroborative of the complicity of the arrestee the crime. police
The factual information in the hands August before search of Parker Street previously 1970, which we have listed, was in their before Poindexter’s hands arrest on justify would an arrest of both Poindexter Rice. supra, Whiteley Warden, basis of sole complaint tip of an and warrant was the informer. The independent officers no law had corroborative informa- Here tion. additional information which complicity gave was corroborative of Poindexter’s probable cause for his arrest. clothing examination of
The scientific of the de- shortly from them after their fendants taken arrest did Amendment. Fourth not violate the
III. Peak at the trial he did Duane in- testified *15 police officer or maim a and when tend kill he left Ohio Street he not arm at 2867 did the suitcase but it, officers; merely frighten purpose was when his 746
(cid:127)they hope they found then treat black would argue people better. The defendants this would permit guilty to find Duane Peak of homi- was degree guilt less murder and cide than first that their alleged only before could be derivative as accessories argue, They therefore, fact. in- that the “If error, the intent of the struction was wit, perpetrator, aider is different that of the the aider’s guilt him,” the intent actuated measured be- guilty the aider cannot of a cause under law greater degree principal. crime of than argument point in the is well done, on brief do not is valid. The we believe it evidence was but design establish common commit sufficient to mur- degree. The fact the evidence der in first permit changed jury to that Peak had find would purpose changed his his his mind as to intended (which changes made were never if communi- actions defendants) so to find that he was cated to degree only guilty less than first of homicide would degree instigators’ change guilt if there not premeditation necessary intent 9e(3), p. § S., Homicide, part. 848; J. 22 See, 40 C. C. p. § Law, 297; State, Red v. 39 S., Criminal Tex. J. 1003; v. 42 N. M. State 84 S. W. Cr. Lord, Fleming State, Miss. 143; v. 80; 2dP. S. App. 96 P. People Cal. 2d 982. 2d Blackwood, statute the common law Nebraska distinc- Under the accessory principal the fact, before between tion abettor, been abolished and the insti- has or aider principal. § R. gator 28-201, tried as a 1943. R. instigator present personally not law common At degree. principal called the second crime was at the instigator governs his cases intent such supra; guilt. State, Red v. Lord, State v. degree of error. supra. instruction IV. assign as error the admission into defendants
Both *16 objections evidence over their certain of newsletters Against of the United Front Fascism and National the (exhibits Committee to Combat Fascism 14, 16, 58). assignment 19, 57, and per- This has several facets taining to motions strike and for as mistrial, well as the claim the admission of the the exhibits is source prejudice of to the defendants in the denial of the separate motion of the for defendants trials because possible use of or statements articles against in the newsletters of defendant one the other. In connection with it is the above asserted that instruc- tion No. 21 is erroneous because it did not limit consid- eration of the statements or articles to the of issue intent.
The newsletters contained articles and statements appearing separate bylines under the of Rice Poin- and general nature of dexter, statements or ar- they ticles, expressions are and material, insofar as relevant were advocacy of hatred for the Omaha and including against violence, of of the use lethal violence, appeared publicly them. newsletters and These were during immediately pre- several months circulated bombing. ceding logically legally were articles statements and material as those two terms
relevant are used seq., p. § 158 S., C. Evidence, the law. 31A J. et 426 et expressions seq. of ill will Threats and homi or malice, admissible show cide cases motive. intent, merely relevant and material not Malice motive are guilt also on of of intent the issue or evidence but as identity pointing perpetrator of innocence as §§ perpetrators. S., Law, 22A C. J. Criminal' person against made a pp. Threats 422. prosecution for crime admissible com a class are Dockery, against that class. State one of mitted 2d S. E. 222, 77 664. N. C. admission exhibits foundation That defendant. each newsletters to
sufficient acknowledged organs UFAF and NCCF supports completely record the defendants. The among conclusion the two defendants were organization; key organizers officers compose appearing they the article above did fact knowledge names; had detailed and that respec- because of their the contents the newsletters composition, editing, parts construction, in the tive cutting including typing, publishing of letters sten- cils, work, Poindexter art and distribution. denied appearing authorship under of the articles his *17 onе procedure publica- general the method but name, support contrary a evidence would the other tion and by of fact. Poindexter Both conclusion the triers each, course, own behalf testified on their Rice opportunity the to cross-examine other. afforded an given by the trial Instruction No. court was as has introduced news “The certain letters State follows: they have been received as evi- into evidence and by agreed parties you it the has been dence but only the as evidence articles written consider are to therein, related to the work contained the art may You consider the defendants. news individual your limitation in deliberations.” In with that letters of error are made. The claims first this connection two agreed by language, “it has been to the the relates with the to the parties,” words, second reference With defendants.” reference individual “related to argument is that the record first, the since con- to the agreement parties an this no evidence tains jury think defendants permitted to with- objections to the exhibits and consented to drawn considering point we jury them. connection jury considering justified the evidence out the Admissibility ques- pertinent' articles and art work. a jury. perceive We can court, no tion language inaptly even if the' used account oh error ' (cid:127)' chosen. With reference error, the second claimed it would appear language, that the “that is related indi- to the vidual might defendants,” is clear been, not as it have as but when taken in connection with instructions Nos. 28 prejudice and portion seems clear to us no resulted. This appear of the instruction would mean that articles or art work not authored the defendants were not to be considered. Instruction No. 29 is NJI 14.54 No. requires jury separately guilt consider against or innocence of each defendant and to consider only each applies defendant evidence which to him. part Instruction 28No. is in as “You are follows: in- plan, structed that where the evidence shows common a arrangement design persons, or or between two more evidence as to act done or made statement one against provided knowingly is admissible all, the act be knowingly during done and the statement be made arrangement continuance of the them, and between object purpose plan furtherance of an or of the common arrangement.” This instruction also left plan whether determination there a common design commit the or of course crime. No. 28 is Instruction Watson,
correct. State v. 182 Neb. N. W. 156. Instructions must 2d considered fairly whole, and when so considered reflect *18 there is no error. law, In with the claimed error connection as to instruction grant 21 and failure No. of the trial court to separate rely upon trials, motion for the defendants States, 123, Ct. United 391 U. S. 88 S. Bruton v. appear principles- L. Ed. 476. The of case 2d applicable to not be because we have noted each subject testified to defendant and cross-examination testify by Bruton other. one deféndant did implicating or admissions his code and his confession against This the codefendant. were used said fendant right the constitutional to denial of held was court cautionary by cured and could not be confrontation only apply appears by its terms instruction. Bruton by when codefendant one to confessions and admissions no there was against case In this used the other. right and confrontation constitutional denial by authored each Also articles cross-examination. implicate by the other. contents do not purportedly is as to this what of the exhibits article One one jointly defendants and both authored paragraph ap- preceding is have we plicable. said fourth justified evi- from the be would finding jointly authored it was fact dence in by the defendants. two denying the motion sever. no error
There was Relating Joinder and Sever- See, A. B. A. Standards 1.2(a), p. Approved and Draft, Standard ance, p. p. 2.2, com- commentary, and Standard and recognize, mentary, p. § 1943. We R. R. 29; 29-2002, S'. may longer cases no Nebraska course, that some supra, light States, United Bruton v. viable in the confession one admission or out-of-court where an right against being without used other defendant cross-examination. confrontation much that is ir- contain The newsletters themselves simply wholly irrele- most and of relevant prejudicial. any support claim it was vant and could not into evi- newsletters it admitted the The court when material and inadmissible irrelevant dence indicated that being shown to before excised items would be jury. appears We are therefore not done. this was It question upon the ad- whether to consider called through apparent over- items some of these mission of requiring prejudicial a reversal sight error constituted and new trial. relevant prejudicial articles most рurportedly authored those
material articles are with defendants, dealt hate and. against them.
advocacy of violence purportedly examples material the irrelevant Some
751' by by authored one or the other the of defendants or arguably prejudicial others and which are at least following: (1) purportedly the An article written attacking High sug- Rice gesting racism at North School and logic if racists the the understand did not maybe they logic words, of . . will understand having having burning (2) of not a house a car.” or Unsigned govern- advocating articles overthrow of the (3) purported plan by ment. Disclosure of United “King called racial Plan,” Alfred use States, internment, unrest as excuse for a racial war and camps in the The concentration racial minorities. clearly admission of items into such evidence was error place no in the trial of cases. these determining preju- whether not this constituted following: (1) we consider fact dicial error The the relevant and material articles admissible purportedly authored of a the defendants were prejudicial any far more nature virulent and than erroneously (2) strength those admitted. of the guilt. more will be said when evidence of About this sufficiency assignment we of related consider (3) cau- the evidence verdict. to sustain the given tionary No. No. instructions, jury. great would base (4) The unlikelihood impose finding guilt consequently a sentence its imprisonment upon matters which were in- of life particular guilt of the dicative of defendants charged. crime with unlikely It seems us admission the con- reaches the dimension of irrelevant statements in accordance with error, but nonetheless stitutional Supreme Court of declared standards Chapman California, 386 U. United States R. 3d we 17 L. Ed. 2d A. L. 87 S. Ct. beyond rea- harmless concluded error was have doing applied the same In so we have doubt. sonable ap- court has reasonable doubt that standard proved being applicable рroof of to the burden *20 guilt prosecutions. This criminal 14.08. NJI No. compatible standard seems to conform and to with Chapman. that that there announced in We conclude possibility prejudice is no reasonable on account of the portions failure to delete the irrelevant of the news- abiding letters. We have an moral cer- conviction to a tainty jury the have convicted Rice irre- would spective of the irrelevant attributed to him statement specifically pos- and which we have mentioned. sibility prejudice to more Poindexter is even remote.
V. assignment We turn to now the final of error made by Poindexter the evidence insufficient was assignment sustain the verdicts. The is not taken well by very and we substantiate this brief résumé of the pertains trial evidence itas defendants, two omit- ting identity evidence of motive and contained in the already adequately newsletters and which has been again finding phy- covered, but will refer to the of the sical evidence Rice’ residence. perpetrator
Duane Peak, the actual the crime, testimony permit for the testified State. His would joined the find that the is true. Peak headquarters the NCCF in November the of which at that time blocks from 2816 Parker Street. participated organization He in the activities of un- hiding August til time he went into 17, 1970. writing newspaper, His included activities ob- serving making, selling newspapers, serving its acquainted desk He officer. was well Rice with positions organizations, in the Poindexter, knew and knew their activities.
On Poindexter talked to Peak about making him, a bomb and told “. . . he had a beautiful plan up pig,” meaning policeman. They a to blow arrangements night to meet made at the home of the of one the members NCCF which did 753- and then Peak then went went to Rice’ home. with he took another obtained member-and a suitcase which through alley door where Rice’ house and back they opened he met Poindexter. Inside Rice and large quantity dyna- It the suitcase. contained a plastic gloves Peak mite. Poindexter furnished with dynamite part of the removed two of them placed Rice took it in box which suitcase the bomb in Poindexter then made the basement. remaining dynamite using and other suitcase Peak, presence of materials. This done in manufacture. Rice used Rice. furnished tools dynamite and the box found Peak identified He identified 2816 Parker Street. search had been Rice. After the bomb' tools furnished the lid suit- inside suitcase manufactured *21 put in Rice’ locked, and bedroom. closed, case was night at look Peak and Poindexter went house at 2867 Ohio the vacant Street. evening August Peak 16, 1970, the of obtained
On arrangements pursuant the from Rice’ home suitcase At time earlier. he had Rice a short which made with gave tacks he Rice him it, time obtained which the through projecting hole needed Peak to fasten wires detonate in the that the bomb would when suitcase so the moved. suitcase was delivery the took of
Peak the route he described testimony corro- 2867 and his bomb to Ohio Street He made the 911 then borated several witnesses. phone telephone 24th and Grace call booth at from a operator story gave the the of woman’s the Streets screaming Poindexter earlier at Ohio Street. August on Peak arrested him to do this. was told 1970. physical the found in evidence addition August Street, Peak’s at 2816 Parker 22, 1970,
search of following. testimony Scientific is corroborated fragments gathered 2867 Ohio at Street' of examination established, probable explosion. of the cause Scien- jacket tific examination of a taken from Poindexter dis- particles dynamite type closed ammonia which is type used in the bomb in Rice’ found base- particles pants. ment. Like on found Rice’ Scien- testimony pliers tific Rice’ indicated that had been used copper bit cut a like in wire that used the bomb and found in the basement Street, Ohio next apparently door to 2867, where thе wire had been blown explosion essentially destroyed the force of the damaged badly house at 2867 and that at 2865. Both Poindexter and Rice were able to establish conclusively night rather whereabouts on August during 16-17, 1970, hours bomb when being planted explosion was when occurred. They making August denied the of the bomb being 1970, or Peak Rice with time. denied evening that Peak was at his home on any part making 16. Both bomb, denied in bombing, participating any plan to commit the crime. credibility
Questions, of course for clearly court. evidence more support than sufficient to the verdict.
Since there no reversible error the verdicts both cases No. 38157 and No. are affirmed. Affirmed. J., concurs result. Smith, concurring J., result.
McCown, agree I cannot the affidavit involved here met previously applicable. standards The United States *22 Supreme uniformly Court court have held that involved, an where informants affidavit a search magistrate (1) must inform the some of the warrant underlying circumstances from the which informant that located he concluded the articles were claimed where underlying (2) they were; some of the circum- in- which officer concluded stances Ventresca, United v. formant States See, was credible. v. 684; State Ed. 2d 380 U. S. L. 102, 85 S. Ct. Holloway, LeDent, 85; W. 2d State 187Neb. 187 N. Neb. 2d 21. 176 N. W. concedes, majority opinion that recitals explosives police had been informed affidavit that the kept had said residence and defendants at the against police explosives officers should be used opinion standing alone. would be insufficient affidavit insufficient an otherwise nevertheless validates allegations membership upon in a theory holding organization of office in such certain together allegation organization, the defendants an with police against officers and that vio- advocated violence “underlying constitute lence had somehow occurred, obvious defects. otherwise circumstances” cure the organization membershiр in an active Whenever any group against police other or violence advocates expression public segment society, of in- and a standing approval alone, be- views, of such dividual justification issuance of a search warrant come for the the Fourth occurs, incident of such violence whenever meaning. Amendment has lost its ground. place At different the decision
I would making the search war- the affidavit for time ample police department information to rant, probable the issuance of war- cause for constitute omitted from the information but much of rant, exclusionary apply under To rule affidavit. substance. Our exalts form over such circumstances permit supplementing should be modified cases suppress by hearing on a motion to at the affidavit proven to have been information of additional evidence made time the affidavit was at the known out in the affidavit. but set issued, and the warrant advisability hoc of an ad indicate here The facts flexibility permitting in thé court’s approach some circumstances, of each case. analysis the individual