127 Neb. 541 | Neb. | 1934
Lead Opinion
Sebastiano Vinciquerra, hereinafter referred to as defendant, was convicted of the crime of murder in the second degree. He prosecutes error to review the record of his conviction.
At about the hour of 11 o’clock p. m., on the night of July 3, 1933, while Earl Haning and two companions were sitting at a table in a basement room in his home in Omaha, Nebraska, three shots were fired through the window screen, each piercing the body of Haning, from the
Defendant complains of the reception of certain evidence given by Officer Brigham, who testified that he took defendant to the hospital, where Haning was lying on an operating table, and that Haning there stated: “Well, you sure did it this time.” He was then looking at the defendant. The officer asked him: “Are you sure he is the man that shot you?” and Haning answered: “Sure, he is the man that shot me.” This officer testified that defendant neither admitted nor denied the accusation. This evidence was admitted at the trial, without objection.
Whether evidence of this character should be received in evidence is a matter over which the decisions of the courts of this country are not in harmony. In the case of O’Hearn v. State, 79 Neb. 513, it was held that the test of admissibility of statements,, made in the presence of one accused of crime who remains silent, is whether the time, place and circumstances surrounding the transaction are such as to lead to the inference that 'the accused, by his silence, consented to the truth of the statements. However, in the present case, we are not called upon to pass on the question, since no objection was made and no opportunity given the trial court to rule upon the question. A defendant may not permit questionable or incompetent evidence to be admitted without objection, take the chance of a favorable verdict, and thereafter complain of its admission.
Complaint is made of the giving of the following instruction :
*543 “The evidence in this case is largely what is known as circumstantial evidence; that is, evidence of facts and circumstances tending to'indicate guilt, rather than testimony of eyewitnesses.
“You are instructed that in considering circumstantial evidence, if the circumstances tend to prove some fact equally consistent with defendant’s innocence or guilt; then you must find all such facts in favor of the defendant.”
It is contended that all the evidence is circumstantial, and that the use of the word “largely” in the instruction was prejudicial to defendant. Two eyewitnesses testified to the fact of the shooting, although these witnesses did not see the person who fired the shots. They did see the flash from the gun through the window and their effect upon the body of Haning. The use of the word “largely,” even though the facts were all circumstantial, could not have been prejudicial to defendant.
Defendant complains of the refusal of the court to give a requested instruction on circumstantial evidence. The requested instruction is to the effect that, to warrant a verdict of guilty of the crime charged on circumstantial evidence, such evidence must be of a very conclusive nature and tendency, convincing on the whole, leading to a satisfactory conclusion and producing, in effect, a reasonable and moral certainty that the defendant, and no other, committed the offense charged; that the test to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances proved, tending to connect the defendant with the crime, are of such conclusive and positive a nature as to exclude, to a moral certainty, every rational hypothesis except that of defendant’s guilt.
In Smith v. State, 61 Neb. 296, it was held: “To justify conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and, when taken together or as a whole,
No instruction was given by the court to guide the jury in determining the sufficiency of circumstantial evidence to warrant a conviction. In the instant case, the defendant was shown by the evidence to have served a term in the penitentiary prior to the commission of the offense charged. He was under a cloud, and his own testimony would naturally be discredited, to some extent at least, by the jury. Under such circumstances, the requested instruction, or one similar to it, should have been given, and failure so to do was prejudicial to the rights of defendant.
There are other assignments of error relating to alleged misconduct of prosecutor and of the court. We have examined them and find them without merit.
Because of the' failure of the court to give the requested instruction, or one similar to it, the judgment is reversed, and the cause remanded for a new trial.
Reversed.
Dissenting Opinion
dissenting.
I respectfully dissent from the main opinion, reversing the judgment and sentence of 15 years to the penitentiary upon a verdict of the jury, returned October 11, 1933, finding the defendant guilty of murder in the second degree.
The deceased was shot just before 11 p. m., July 3, 1933, while sitting in the basement room of his residence with John Rice and Millard Burress, and died a few hours later. Three shots were fired through the basement window, all going into his body, two going" clear through. His wife had just gone up to the living-room above the basement
A. C. Anderson, chief of detectives, Omaha police department, reached the home of Louise Haning, at 2002 North Forty-eighth street, in response to her call, just after her husband had been removed to the hospital. He made a careful search of the basement, and found one bullet in the basement and three exploded shells outside the house from a .32 caliber automatic. The defendant later admitted to the detective that he was the owner of a .32 Colt automatic, and said it was at the store that he was conducting at Twenty-eighth avenue and Locust street. The defendant at that time told him that he did not want any first degree murder “rap” placed against him
Roland McDonald, a member of the police force, assigned to the identification bureau, and being the ballistic expert of the department, made many tests with the gun, the shells, and the same kind of bullets fired from the same gun, and told of examining the bullet found in the body of the deceased with a microscope, together with marks of the firing-pin blows on the primer on the empty shells, and testified that the bullets had been fired from the defendant’s gun, and that the three empty shells found outside the basement window bore marks showing that they had been fired from the defendant’s gun.
Clifford Bovee was a half block from the place when the shooting occurred, and when he got to the corner he saw a model A Ford coupé, of dark color, drive out of the driveway of the deceased’s house. The car had no lights burning at the time.
A police officer went to the Haning home immediately after the shooting, and then to the store of the defendant,
The defendant in his evidence endeavored to show an alibi, and that he and Emmons were some place else, riding around in his car at the exact time of the shooting, but the jury failed to be impressed in any way by this attempted alibi.
Vernon Clark, a filling station operator, testified that, between 10:30 and 10:45, a very few moments before the shooting, the defendant drove into the station for gasoline; that he acted queerly, and witness watched him carefully, as he thought he might be a holdup; that Emmons came from Riley’s café across the street and got in the car and they drove away.
The deceased was sitting in the basement facing the window opening from which the three shots were fired into his chest and stomach. The window was open, there being no glass or anything to obstruct his view of the murderer, save the screen. The others in the room saw the light of the flashes; the deceased at once positively stated that it was the defendant who shot him. I find nothing in the evidence to make it impossible that the deceased, facing the window and, looking out after the first shot, did not see and recognize the defendant. He never wavered from this positive recognition during the six hours he remained alive. Exhibit No. 19 is a picture taken from the inside of the basement room of the aperture, showing the screen with the three bullet holes through it, and a very clear outline of a police officer standing outside the window, and this picture was taken the same night at 11:30 p. m. The evidence shows that when deceased was lying upon the operating table in the hospital, and the defendant was brought into the room, he made the statements set out in the main opinion, the last one being, “Sure, he is the man that shot me.” This evidence was given at the trial without objection, and was clearly proper under the authority of O’Hearn v. State, 79 Neb. 513, 25
The defendant took the witness-stand and denied that he shot the deceased. He was asked when he had been at that house previously, and answered, “I never have been there for fifteen months, — that time I got shot with Earl Haning.” He testified that in 1929 or 1930 he married another woman, but that they were now divorced, and that he had' only been back at his place of business about 10 minutes when the officers arrested him the night of the shooting. When cross-examined about statements he made to the police the night he was arrested, he said: “I answered questions down there I never should have.” It is very rarely indeed that such definite, positive, and convincing evidence can be produced in a murder trial, as was given to the jury in this case, upon which to base their verdict of guilty.
In the main opinion this conviction and sentence are reversed because the trial judge gave instruction No. 15 on circumstantial evidence, when he might have chosen a much better one. As printed in the defendant’s brief, it reads as follows:
“The evidence in this case is largely what is known as circumstantial evidence; that is, evidence of facts and circumstances tending to indicate guilt, rather than testimony of eyewitnesses.
“You are instructed that in considering- circumstantial evidence, if the circumstances tend to prove some fact equally consistent with defendant’s innocence or guilt, then you must find all such facts in favor of the defendant.”
Defendant objects to the use of the word “largely” because defendant claims that the evidence was “entirely” circumstantial. This objection has little foundation, for a large amount of evidence is “direct” evidence of the most positive sort.
It stands to reason that the trial judge, by giving more time and care, could have selected a very much better instruction upon circumstantial evidence, from the dozens
Next, I claim that this court is positively forbidden to reverse this conviction and sentence by enactment of our legislature, being the last paragraph of section 29-2308, Comp. St. 1929, reading as follows:
“No judgment shall be set aside, or new trial granted, or judgment rendered in any criminal case on the grounds of misdirection of the jury, or the improper admission, or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.”
We find that this section was added to our law by an amendment introduced by Senator Walter V. Hoagland, an experienced trial lawyer, and, upon its passage, was approved by the governor April 8, 1921. It has been contended that, whenever this provision of our law conflicts with our Constitution, the legislative enactment fails.
I admit that it must be applied cautiously, and that it is subject to sections 3, 6, and 11, art. I of the Constitution, and that no case could be affirmed under its provision if such decision was violative of any one of these three sections. In examining each of these constitutional provisions, it is my opinion, that the defendant in the case at bar was not deprived of his liberty without due process of law, as promised him in section 3, art. I of the Constitution, and he has been given a fair and impartial trial by a jury, as promised to him in section 6, art. I of our Constitution, and has faced the witnesses testifying against him, and been protected by the other provisions set out in
This last part of section 29-2308, Comp. St. 1929, was given an extended discussion in the opinion reversing Scott v. State, 121 Neb. 232, and extensive quotations were made from the leading English case of Makin and Wife v. The Attorney General for New South Wales, 17 Cox Cr. Cas. 704. Let us examine the Makin case, which is cited as a precedent for a reversal of criminal cases, in spite of the section of our statute cited above. Makin and wife were found guilty of the murder of Horace Amber Murray, being an illegitimate baby, under 10 weeks’ old, the child of a domestic servant, which the Makins had taken in to nurse upon the payment of a small sum, and upon their representation that they desired to adopt the infant as their own. During the trial of the case, evidence was introduced showing the finding of the bodies of other little infants under circumstances implying that Makin and wife might have been connected with their deaths also. The admission of such evidence was immediately attacked, and the trial judge, realizing the weight of the objection, reserved passing sentence on the prisoners. Lord Chancellor Herschell, in reviewing the case, said that the trial court was wrong in admitting evidence of the finding of the bodies of other infants, and set out that it was claimed there was no evidence of how the little infant came to his death, or that he was murdered by the defendants, but that if, without the inadmissible evidence, there was evidence sufficient to sustain the verdict, and to show that the accused were guilty, then there would be no substantial wrong, or miscarriage of justice. The final paragraph in this case reads as follows: “Their Lordships desire to guard themselves against being supposed to determine that the proviso may not be relied on in cases where it is impossible to suppose that the evidence improperly admitted can have had any influence on the verdict of the jury, as
Another English case referred to is that of Allen v. The King, 44 Can. Sup. Ct. 331. Allen, a private soldier, was tried for shooting his captain at Victoria, British Columbia, and sentenced to death, the defense being temporary insanity by reason of overindulgence in alcohol. In this long opinion of more than 30 pages, the Canadian provision, found in section 1019 of the Canada Criminal Code, is set out, and is very similar to the last paragraph of section 29-2308, Comp. St. 1929, under discussion in this case, and it is shown that in the trial of the case Allen was asked whether a witness, Corrigan, had not testified, in the preliminary hearing in the police court, of threats made by Allen against Captain Elliston, and a number of such very damaging statements testified to by Corrigan at the preliminary hearing were thus injected into the evidence, although at the time this was done Corrigan had left the army as a consequence of being afraid to stand cross-examination if called as a witness at the jury trial, and was not in the province when the trial was held. It is clear from this statement of the facts that substantial wrong was done to the defendant, Allen, by the admission of this highly improper evidence, and that the court was right in setting aside the conviction of Allen for miscarriage of justice although dissents were filed.
These two cases were doubtless closely in point when applied to the facts in Scott v. State, supra, but can they be used with equal force as precedents in the case at bar, where the reversal is based largely on the fact that the court failed to give the jury a guide to determine the sufficiency of circumstantial evidence to warrant a conviction ?
I believe the jury gave only the proper weight to the circumstantial evidence under the instruction given them, which told them that, if a fact was equally consistent with the guilt or innocence of the defendant, they must find all such facts in favor of the defendant.
I adopt the language of Judge Rose in his dissenting opinion in Cooper v. State, 120 Neb. 598, and close this dissent with his words: “I made ‘an examination of the entire cause,’ and I say with conviction there was no prejudicial error or miscarriage of justice in the proceedings and sentence. Under the evidence a verdict of not guilty would have been a travesty on justice and a reproach to the law.”
Concurrence Opinion
concurring.
The majority opinion holds that the instruction on circumstantial evidence inadvertently given by the able and experienced trial judge was reversible error. This was made imperative because the defendant requested an instruction which this court has held to be a proper and a necessary one since Walbridge v. State, 13 Neb. 236, was decided in 1882, which opinion was written by Maxwell, J. Numerous cases have been decided by this court upon the identical question involved in this case, including those cited in the majority opinion, and the rule has never been questioned until the dissenting opinion in this case.
It is neither a minor nor an inconsequential error. The trial judge stated in his instructions to the jury that the evidence is largely circumstantial. I not only made an examination but read the entire record and can say with a conviction equal to that of my distinguished associate that the evidence connecting the defendant with the crime charged is entirely circumstantial. The dissenting opinion intimates that the reversal was based upon the trial court’s failure to cross a “t” or dot an “i.” That is not the fact as an impartial reading of the opinion would disclose. For many years, this court has taken an advanced position and refused to reverse judgments for inconse
Section 6, art. I of the Constitution, provides: “The right of trial by jury shall remain inviolate.” This would seem to entitle the defendant to a jury trial when charged with murder. Chapter 20, art. XI (b), Comp. St. 1929, provides the only method of trial by jury in this state. Section 20-1111, Comp. St. 1929, provides that the trial judges shall instruct the jury in writing upon the law applicable to the case. Quoting from Webb v. State, 140 Tenn. 205, annotated in 15 A. L. R. 1034, we find it specially applicable to this case: “In such a case, the main fact — the factum probandum — is the fatal stroke, and if there be no direct testimony connecting the accused with the main fact, as the slayer, and the sole evidence is circumstantial, it is error not to instruct the jury as to the rules applicable to that kind of evidence. The error is of the class denominated fundamental. It goes essentially to the basis of the accused’s theory for defense.”
The people of this state by constitutional provision have decreed that one charged with crime is entitled to a jury
This court has recognized that section 29-2308, Comp. St. 1929, is to be liberally construed in favor of justice, as a remedial statute. Cryderman v. State, 101 Neb. 85. It was so construed in Norton v. State, 119 Neb. 588; Broquet v. State, 118 Neb. 31; Clarke v. State, 125 Neb. 445. In the last cited case, it was held, in an opinion by Shepherd, District Judge, that a “variance, if any, between information charging automobile as defendant in liquor case and complaint describing car, but not particularizing, held not prejudicial.” (250 N. W. 551.) These decisions are representative of the trend followed by this court over a long period of time.
Summarized, the position of this court has been that an immaterial matter not affecting the substantial rights of a defendant was not prejudicial, reversible error. But this court has never yet ignored the violation of a defendant’s constitutional right. The argument of the minority opinion is untenable. To follow it to its logical conclusion and apply it to a hypothetical case indicates its fallacy. Suppose a trial judge submitted a case to a jury of men un
It is not necessary to analyze the evidence or the excerpts and inferences of the minority opinion for that the duty and responsibility of weighing the evidence and determining the guilt or innocence of the defendant has not been placed upon the members of this court. When and if that duty is constitutionally commended to this court, it will be assumed and discharged. Until such a time, this court should continue to function within constitutional limitations and not usurp powers which have definitely not been given to it.
The njinority opinion inquires whether the authorities can be used with equal force as precedents with the case at bar where the reversal is based largely on the fact that the court failed to give the jury a guide to determine the sufficiency of circumstantial evidence to warrant conviction. That squarely presents the question, but we are unable to understand by what process of reasoning it is
If according to the minority opinion “a verdict of not guilty would have been a travesty on justice and a reproach to the law,” the state would not need an unfair and unconstitutional advantage to obtain a conviction. If this were a fact, the defendant would have been convicted if his constitutional rights had been observed. But the interest of the state is not served by sentencing a man to penal servitude, unless the evidence has been weighed, and he has been found guilty of a violation of the criminal laws of the state. The purpose of the criminal law is to punish the guilty.
But it has often been said and so often reiterated that
There was no identification in the case at bar by any eyewitness, unless it can be said that the alleged statement of the murdered man amounts to such identification. Let it be remembered that this happened after 10 o’clock at night; that the xhurdered man was in the basement and was shot by somebody on the outside, in the dark, through the screen. The statement of the murdered man was not that he saw the defendant shoot him, but rather that the defendant “got him.”
Quoting further from Professor Borchard, at page XIV he states:
“Erroneous convictions on circumstantial evidence exclusively * * * are not many, yet enough to be disturbing. Of the eleven cases of this type here recorded, eight in*559 volve charges of murder in the first degree and convictions of murder in the first or second degree.
“No one will suggest that circumstantial evidence should be excluded as a form of evidence. On the contrary, it is often convincing and conclusive. That it is, nevertheless, often misleading and unreliable, the cases here reported attest. Chief Justice Shaw, in his celebrated charge to the jury in Dr. Webster’s case (Commonwealth v. Webster, (1850) 5 Cush. (Mass.) 295, 312), said: ‘The advantages (of circumstantial evidence) are that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. The disadvantages are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions; a source of error not existing in the consideration of positive evidence.’ ”
Quoting further from Professor Borchard, page XVIII: “Public opinion is often as much to blame as the prosecutor or other circumstances for miscarriages of justice. Criminal trials take place under conditions with respect to which public interest and passions are easily aroused. In fourteen of the cases in this collection in which the frightful mistake committed might have been avoidable, public opinion was excited by the crime and moved by revenge to demand its sacrifice, a demand to which prosecutors and juries are not impervious. This can by no means be deemed an argument for the abolition of the jury, for judges alone might be equally susceptible to community opinion. But it is a fact not to be overlooked.”
We have only quoted from Professor Borchard in so far as his conclusions seem applicable to and helpful in the case at bar. This able analysis and discussion of actual cases demonstrate that innocent men are sometimes convicted. But it is not necessary for us to go outside of our
A further reason might be because, as stated in the report of the county attorney to the pardon board at the time of his conviction, he did not bear a very good reputation by reason of his bootlegging activities. When convinced of their mistake, the county attorney, the sheriff, and the president of the bank hastened to make amends and secured a pardon. It is a frequent argument of those who contend that no conviction should be reversed because of the expense of a new trial. They seem unmindful of the fact that the conviction of an innocent man damages-the individual more than the state can recompense. It is a serious thing to send a man to the penitentiary for a crime which he did not commit. It places a stigma upon him which will blight his entire life. In connection with the Lytle case, chapter 11, Laws 1933, is of interest and indicates that convicting an innocent man is often expensive for the state. It il as follows:
“An act for the relief of Alvah L. ‘Doc’ Lytle; to appropriate the sum of $2,500 therefor out of the general fund.
“Preamble
“Whereas, Alvah L. ‘Doc’ Lytle, a resident of the city of Superior, county of Nuckolls, state of Nebraska, on March 22, 1930, then a peaceable and lawabiding citizen, happily married, his immediate, family consisting of a wife and*561 small child, and while pursuing the lawful occupation of a chef was arrested, and was on March 22, 1930, after a trial had in the district court of Kearney county, Nebraska, sentenced to the Nebraska state penitentiary for the crime of robbing the Exchange National Bank of Minden, Kearney county, Nebraska, said robbery having occurred on March 20, 1930 (actually December 20, 1929) ; and
“Whereas, on March 22, 1930, said Alvah L. ‘Doc’ Lytle was sentenced to serve a term of not less than 12 nor more than 15 years in said penitentiary, — at all times protesting his innocence of said crime as charged, and an alibi being his defense and established by a number of witnesses, but disregarded by the court and jury in said case; and
“Whereas, approximately two years thereafter, one John L. Webster was arrested in the state of Illinois, for bank robbery, committed at Bartonsville, Illinois, and upon his arrest, said Webster confessed not only to the Illinois bank robbery, but also fully confessed to the robbery of said Exchange National Bank of Minden, Kearney county, Nebraska, and set forth in complete detail the mode and manner in which said Exchange National Bank of Minden, Kearney county, Nebraska, was robbed; and
“Whereas, the said Webster’s confession convinced the county attorney of Kearney county, the district judge before whom said Alvah L. ‘Doc’ Lytle had been tried that the wrong man had been convicted; and
“Whereas, a full and complete hearing was had before the Nebraska state board of pardons and paroles which exonerated said Alvah L. ‘Doc’ Lytle, said opinion of the said board of pardons and paroles, dated March 8, 1932, being concluded as follows:
“ ‘After reviewing the newly discovered evidence, we are satisfied that Lytle is innocent of the charge on which he is serving, conviction is therefore held for naught, and it is ordered that Alvah L. Lytle be discharged and restored to all his civil rights;’ and
*562 “Whereas, the character and reputation of said Alvah L. ‘Doc’ Lytle, prior to his unwarranted and unlawful conviction of a felony, as aforesaid, was exemplary and above reproach; and
“Whereas, after serving approximately two years in the Nebraska state penitentiary for a crime which he, the said Alvah L. ‘Doc’ Lytle was innocent, he received upon his discharge from said penitentiary the usual ten dollars that is given to every departing convict; and
“Whereas, Alvah L. ‘Doc’ Lytle has been incalculably injured in his good name, honor and reputation by the atrocious mistake made by the peace officers, the prosecutors and the courts of this state and in equity and good conscience should, in a measure, be recompensed for the great wrong, humiliation and suffering which this unfortunate miscarriage of justice has brought to him; now therefore
“Be it Enacted by the People of the State of Nebraska:
“Section 1. That there is hereby appropriated out of the general fund of the state of Nebraska, the sum of twenty-five hundred dollars for the relief of Alvah L. ‘Doc’ Lytle.
“Section 2. Said sum so appropriated shall be in full of all claims and demands on the part of said Alvah L. ‘Doc’ Lytle against the state of Nebraska on account of his wrongful conviction of the felony of bank robbery by the courts of this state; and the auditor of public accounts is hereby authorized and directed to draw a warrant for the amount therein specified upon the general fund; and the state treasurer is hereby directed to pay said warrant to Alvah L. ‘Doc’ Lytle, his heirs, successors or assigns, that said payment be made only on condition that said Lytle pay counsel for service in securing this payment not to exceed fifteen per cent. (15%) of amount paid.”
This case exemplified the expense to the state of the wrongful conviction of an innocent man. It also is positive proof that an error can and has occurred. But it poorly expresses the great injury suffered by Mr. Lytle.
In conclusion let us summarize:
A. The trial court failed to give the jury a guide to determine the weight of the circumstantial evidence.
B. That the failure to give the proper instruction on circumstantial evidence is a fundamental error, and goes essentially to the basis of the accused’s theory for defense.
C. That this court cannot weigh the evidence and determine the guilt of the defendant and then under section 29-2308, Comp. St. 1929, determine that no substantial miscarriage of justice has actually occurred, where a substantial right has been denied.
D. That this court cannot usurp the function and invade the province of the jury and thus deny the defendant his constitutional right to a jury trial.
E. That a failure to observe constitutional rights increases the possibility of error from which lamentable consequences follow.