STATE OF NEBRASKA, APPELLEE, V. DAVID TOMMY GENE SUGGETT, APPELLANT.
No. 38665.
Supreme Court of Nebraska
March 2, 1973
204 N.W.2d 793
The defendant contends that the trial court erred in overruling the special demurrer and the motion to transfer.
A demurrer reaches only defеcts which appear on the face of the petition.
The record does not show that this action was commenced in the wrong county or that a transfer of the action to Saunders County was required for the convenience of the parties and witnesses or in the interest of justice. Wherе the record does not show an abuse of discretion, the ruling on a motion to transfer under
The judgment of the district court is affirmed.
AFFIRMED.
Clarence A. H. Meyer, Attorney General, and James J. Duggan, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, MCCOWN, NEWTON, and CLINTON, JJ.
NEWTON, J.
This is a prosecution for second degree murder. Following an argument in a bar between Benjamin L. Martinez and the defendant the altercation was resumed in the street. Martinez struck the defendant twice with his open hand and defendant retaliated by stabbing Martinez three times, inflicting fatal wounds. A jury found the defendant guilty of homicide in the second degree and he received an indeterminate sentence of 20 to 30 years. We affirm the judgment of the district court.
Defendant challenges the sufficiency of the evidence to sustain the verdict and judgment. We will not attempt to set out the extensive evidence contained in the record. It was conflicting in several particulars. Suffice it to say that after a careful perusal of the record, we find the State‘s evidence, if believed by the jury as it evidently was, ample to sustain the conviction. “In determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, it is not the province of the court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.” State v. Rose, 188 Neb. 84, 195 N. W. 2d 215.
In the instructions to the jury, the court gave the standard instructions on self-defense and malice. The
“Define ‘without just cause or excuse’ under Instruction No. 8-B‘.”
“As his principal ‘just cause or excuse’ for the killing of Benjamine (sic) L. Martinez the defendant contends that he acted in self defense. Self-defense is defined and discussed in Instruction No. 10, to which you are referred.
“In addition thereto, you are instructed that killing in self-defense is grounded upon necessity. The right exists only in extremity where no othеr practicable means to avoid the threatened harm is apparent to the person resorting to it. If there is no real or apparent necessity for the killing, the defense fails. In order to be entitled to assert self-defense as an excuse or justification for the killing, the defendant must have been in imminent danger of death or great bodily harm at the time of the commission of the act. In order to justify or excuse a killing in self-defense, the defendant must not only have entertained the belief that his life was in danger, or that he was in danger of suffering great bodily harm, but the belief must have been reasonable and in good faith. It is for you, the jury, to determine whether or not the defendant killed Benjamine (sic) L. Martinez in fear of death or of suffering great bodily harm, or, on the other hand, whether or nоt the killing was motivated by anger, punishment, or vengeance.”
The instruction although not recommended is not erroneous in context with NJI No. 14.33. See State v. Goodseal, 186 Neb. 359, 183 N. W. 2d 258. It is true that to some extent the instruction was repeti-
“The repetition of an instruction is not reversible error, unless its effect is to mislead the jury.” Robinson v. State, 71 Neb. 142, 98 N. W. 694. See, also, Brown v. State, supra.
The knife used in the encounter was not found and no knife was placed in evidence. There was evidence that a knife had been observed in defendant‘s hand at the timе of and immediately after the encounter. It was also shown that on one other occasion the defendant, during an argument, produced a knife. During argument the State‘s attorney produced and used a knife to demonstrate what occurred. There was no objection made to this procedure. Under the circumstances here, the use of a knife during a demonstration of what had occurred, although not to be recommended, or approved, could scarcely have prejudiced the jury and was not error. In any event, the failure to object waived the objection now urged. We said in Clark v. State, on motion for rehearing, 79 Neb. 482, 113 N. W. 804: “It is only in the most flagrant cases of the use of improper language by a prosecuting attorney, even in the prosecution of capital offenses, that defendant‘s counsel can apparently acquiesce in the language used by remaining silent until the trial is finished, and then cause the trial and verdict to be set aside by complaining of statements to which he seemed at the time tо consent.”
On cross-examination the defendant testified that he had never had or used a switchblade knife and never pulled one on anyone. Rebuttal witnesses testified to
In O‘Connor v. State, 123 Neb. 471, 243 N. W. 650, this court held: “In the cross-examination of a defendant who voluntarily becomes a witness in his own behalf, сonsiderable judicial discretion is committed to the trial court to go beyond the literal scope of the direct examination in matters testing the accuracy, memory or credibility of the witness.” This evidence was also pertinent from the standpoint of testing the credibility of the defendant as a witness. “The reception of evidence collateral to any issue in the case intended to affect the credibility of a witness is usually within the discretion of the trial court, and the ruling concerning it is not reason for reversal of the judgment in the case in the absence of an abuse of discretion.” Hampton v. Struve, 160 Neb. 305, 70 N. W. 2d 74.
A question is raised as to the correctness of the sentence imposed in view of recently adopted statutes.
How can this be reconciled with
The two statutes are clearly in conflict if both are construed as governing courts in the imposition of sentences. One defines minimum and maximum terms as those fixed by statute, the other as either the statutory or court-imposed terms. It is apparent that no court could comply with
It is the rule that: “In determining the legislative intent, all statutes relating to the same subject should be construed and considered together. * * *
“When the intent of the Legislature is clear, it is the duty of the courts to construe it in accordance with such intent. A sensible construction will be placed upon it to effectuate the object of the legislation rather than a literal meaning that would have the effect of defeating the legislative intent.” Keller v. State, 184 Neb. 853, 172 N. W. 2d 782.
It appears clear that
One question remains. Is
We find other assignments of error to be without merit.
The judgment of the district court is affirmed.
AFFIRMED.
SPENCER, J., dissenting.
I respectfully dissent from the majority opinion herein for three reasons: (1) Misconduct of the prosecuting attorney; (2) prejudicial instruction on self-defense; and (3) the erroneous interpretation of
I am unable to agree with the majority that the use of a switchblade knife by the prоsecuting attorney in giving the jury his idea of what occurred could scarcely have prejudiced the jury and was not error. A switchblade knife is a vicious instrument. Possibly some members of the jury would not appreciate its real character. No knife, and consequеntly no switchblade knife, had been offered in evidence nor would it have been admissible if it had been. The prosecuting attorney used one in his argument for only one purpose — to inflame the jury. I cannot help but feel that this conduct was much more flagrant than that in some of the cases in which we have reversed for misconduct of the prosecutor.
In its instructions the court gave the usual and a proper instruction on self-defense. In response to a question as to the meaning of “without just cause or excuse,” the court gave what is in my judgment a prejudicially er-
I also question the opinion‘s interpretation of
McCOWN, J., joins in this dissent.