Wever v. State
| Decision Date | 30 October 1931 |
| Docket Number | 27967 |
| Citation | 238 N.W. 736,121 Neb. 816 |
| Parties | INAS L. WEVER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Ordinarily admission of incompetent evidence will not be held prejudicial where the same state of facts is established by the testimony of the party complaining.
In a prosecution for homicide, remoteness of acts of hostility by the defendant towards the victim of the homicide affects the weight and not the competency of evidence of such acts, especially where it is shown that such acts of hostility are continued practically to the time of the homicide.
Ordinarily, error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it.
In the trial of a criminal action, where spectators applaud and counsel for defendant proceed with the trial, without objection and without request for a mistrial, and take chances of a favorable verdict, they will not be heard to complain of such fact, for the first time, on motion for a new trial.
Demonstrations on the part of spectators in the courtroom do not constitute ground for a new trial, where they are promptly checked and it appears probable that the jury were not influenced thereby.
" In a prosecution for murder in the first degree committed by administering poison, the court is not required to instruct the jury as to the law applicable to manslaughter or murder in the second degree, where the evidence clearly establishes that the defendant is either guilty of the crime charged or entirely innocent." Davis v. State, 116 Neb. 90, 215 N.W. 785, 786.
Evidence examined and outlined in the opinion, and held sufficient to sustain a verdict finding defendant guilty of first degree murder.
Error to District Court, Cass County; Begley, Judge.
Inas L. Wever was convicted of murder in the first degree, and she brings error.
Judgment affirmed.
William N. Jamieson and J. R. Lones, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
Inas L. Wever, plaintiff in error (hereinafter designated defendant), was convicted on an information charging her with first-degree murder by administering strychnine poison to her husband, George Wever. She brings the record of her conviction to this court for review.
There are numerous assignments of error, but many of them are not discussed in the briefs and are apparently abandoned. We shall consider only those which are discussed in the briefs and apparently relied upon by defendant.
Defendant complains that the court erred in permitting evidence to be received tending to show frequent quarrels and controversies between defendant and her husband, extending over a period of several years previous to the homicide in question. The record discloses that defendant, as a witness, gave evidence of like tenor, although she did deny some specific incidents related by witnesses for the state. It is a rule that the admission of incompetent evidence is not prejudicial where the same facts are established by the testimony of the complaining party himself, and whether before or subsequent to the admission of the incompetent evidence. 17 C. J. 324.
It is contended that some of the incidents related by state witnesses were too remote and should not have been considered or admitted in evidence. While some of the incidents were somewhat remote, the evidence tends to show that there was a continuous course of conduct between the parties, and that hostilities existed during many years previous to the homicide. It is also a rule that remoteness of such testimony is regarded as affecting the weight and not the admissibility of the evidence, especially when the condition continues to the time of the homicide. 30 C. J. 184, 196-198; Sharp v. State, 115 Neb. 737, 214 N.W. 643.
Defendant complains because evidence was admitted showing the purchase by her of arsenic on the day before the death of Mr. Wever. The information charged the commission of murder by the administration of both arsenic and strychnine sulphate, but there is no evidence that Mr. Wever's death resulted from arsenical poisoning. At the close of the state's evidence, on motion of the prosecuting attorney, all evidence relating to the purchase of the arsenic was stricken from the record, and the jury were directed to disregard it.
We think the evidence was properly admissible. The defendant testified that the strychnine purchased on the day of Mr. Wever's death was for the purpose of exterminating rats, and the arsenic had been purchased the day before for the same alleged purpose. Evidently, sufficient time had not elapsed since the purchase of the arsenic on the 8th day of December to determine whether other or different poison was necessary to accomplish that purpose. The purpose for which defendant said she purchased the strychnine might very well be questioned, in view of the very recent purchase of arsenic for the same purpose. With respect to this testimony, no error prejudicial to the defendant was committed in its admission, but, had it been error, the striking thereof from the record and the direction to the jury to disregard it were sufficient to destroy any effect it might have had. This court has held in McCormick v. State, 66 Neb. 337, 92 N.W. 606, and Robinson v. State, 71 Neb. 142, 98 N.W. 694, that error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it.
It is contended that defendant was deprived of a fair trial on account of hissing and applauding on the part of spectators in the courtroom during the trial. There is no evidence in the record of any hissing. The only evidence of applause is a notation by the reporter, following a verbal tilt between counsel for defendant and a state witness. The court promptly rebuked such conduct and stated that if it occurred again the courtroom would be cleared. Ordinarily, this would be sufficient, but, aside from that, no objection was raised by defendant; nor is there anything in the record to disclose the nature or extent of the applause, or who was guilty of the misconduct. If counsel for defendant at the time had reason to apprehend or believe that such conduct would prejudice the rights of defendant, they should have then requested the court to declare a mistrial. Instead, they elected to proceed with the trial without objection, and took the chance of a favorable verdict, and now seek to overturn the verdict for causes which they knew and did not object to before the case was submitted to the jury.
In Kriss v. Union P. R. Co., 100 Neb. 801, 161 N.W 414, it was held: "The general rule is that counsel cannot remain quiet and seemingly acquiesce in remarks of opposing counsel in his argument to the jury, and after verdict obtain a reversal because of matters not...
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