Bassinger v. State
| Decision Date | 07 August 1942 |
| Docket Number | 31370. |
| Citation | 5 N.W.2d 222,142 Neb. 93 |
| Parties | BASSINGER v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a criminal case where there is no satisfactory showing that the defendant could not have a fair trial in the county where the crime was committed, it is not prejudicial error to deny a change of venue.
2. "It is not error to overrule a challenge to the array that does not plead facts showing in what way the statute regulating the manner of drawing the jury panel was violated." Uerling v. State, 125 Neb. 374, 250 N.W 243.
3. Where there is no showing that a defendant could not properly prepare his defense prior to the time set for trial it is not prejudicial error to deny a continuance.
4. Where photographs of a murdered man and the scene of the crime tend to throw light upon or illustrate any controverted issue, and a proper foundation is laid, it is not prejudicial error to admit them in evidence.
5. Where an article of clothing, shown to have been worn by the defendant both before and after a murder was committed, is exhibited to and identified by and testified about by several witnesses without objection, in the manner set out in the opinion, it is not prejudicial error to admit it in evidence.
6. Where it appears that a murder was committed by using some sort of a hammer, and a hammer handle is found at the scene of the crime and identified as the handle from a hammer in the possession of the defendant prior to the murder, it is not prejudicial error to admit the handle in evidence.
7. Where the evidence justifies a finding of guilt of murder in the first degree, it is not error prejudicial to the defendant for the trial court to submit to the jury the question of guilt of the lesser included offense of murder in the second degree.
8. Where an information charges that the defendant did strike beat, wound and maim the deceased causing his death, and the state offers evidence showing that the murder was committed by the use of some sort of a hammer and that defendant had a hammer in his possession a short time prior to the murder, and that the handle of that hammer was found at the scene of the crime, it is not error for the trial court to refuse to instruct that the state must prove beyond a reasonable doubt that the murder was committed with that hammer and that hammer only.
9. Section 29-2308, Comp.St.1929, provides: "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." Pursuant to the above provision of the statute we have examined the entire cause and have determined that no substantial miscarriage of justice has actually occurred and that error prejudicial to the defendant did not occur.
Andrew P. Moran, of Nebraska City, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and H. T. White, Asst. Atty. Gen for defendant in error.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, and YEAGER, JJ and ELLIS, District Judge.
The defendant was convicted of the first-degree murder of William George and sentenced to life imprisonment. He appeals.
For the most part the facts are not in serious dispute. That the deceased was murdered is not questioned. The dispute comes as to whether or not the defendant committed the crime.
William George and his wife lived in what is described as a "shack" near the river front in Nebraska City. This building had willow poles for its framework, covered with burlap on the sides near the ground, wire screen above that and a tar paper roof. Cooking in good weather was done outside. In the inside were two beds and other personal belongings. They had also a trailer which was parked nearby. George and his wife were uptown on the evening of September 11, 1941; they returned home and went to bed in the same bed about 10 or 11 o'clock. The wife slept on the inside near the wall and George on the outside. Mrs. George testified that after they had gone to sleep she was aroused by her husband speaking and witnessed the attack which resulted in his death. Mrs. George testified that she tried to protect her husband from his attacker, that her husband tried to get out of bed and fell back in the position in which he died.
The deceased had five separate wounds on his head caused, according to the doctor, by blows from some sort of a hammer. One of the wounds caused his death. He had also several wounds on his body. He had a wound on his right ring finger or knuckle and a swollen lip; these latter wounds, according to the physician, were several hours older than the head wounds.
Mrs. George positively identified the defendant as the assailant. She says that after she was able to get out of bed, she put on shoes and a wrap and secured her husband's money from his pants, and sometime during these minutes hid it in a pillow where it was later found by the officers. She says the defendant required her to go with him to find his shoes up near a corn patch, that they then returned, where he compelled her to enter the trailer and submit to intercourse. She testified that she then went to the nearby railroad station and reported the crime to the man on duty. This fixes the time of the murder at about 3 a. m., September 12, 1941. She told the agent that the crime had been committed by a tall, well-dressed man who had a black moustache, and that he was accompanied by a short man. She remained there until the officers were called and returned to the "shack" with them. She told the officers of the tall man, but later repudiated the story and said she was told by the defendant to tell it and was afraid to do otherwise.
There is some controversy about how the assailant entered the "shack." The screen door was not fastened. There was a tear in the burlap at the end of the aisle between the two beds. Mrs. George testified that it was not there before the murder. The defense produced witnesses indicating that it was made some days or weeks before. The sheriff saw tracks made by some one either in bare or stocking feet just outside of the "shack" by that torn place.
Other than the direct evidence of Mrs. George, there was evidence connecting the defendant with the crime. The defendant and Mrs. George had been acquainted for some time. She says that he had on two or three occasions suggested that she go to Kansas with him and be his housekeeper and that she had refused to do so. She says that defendant knew that George had some money and that on the day before the murder George had sold two hogs for cash. On the evening before the murder the defendant called at his brother's home sometime between 9 and 10 o'clock and, as testified to by the brother, the defendant told him that he had just had a fight with George; that he had "rolled him" and that the fight was provoked by things that George had said about the defendant and Mrs. George. Mrs. George denied that any such fight occurred. Both the brother and his wife testified that the defendant also borrowed a ball peen hammer from his brother that night, stating that he wanted to use it to set a saw the following day and that he took the hammer with him when he left that evening around 10 o'clock. The defendant told the sheriff that he had borrowed a claw hammer from his brother and stated that it had a long homemade handle; this description does not fit the one in evidence. No such hammer was found at any of the places suggested by the defendant. Defendant, on the day following the murder, went to work cutting logs in the timber near Plattsmouth as usual. His movements were testified to. He did not set a saw that day before his arrest, and the evidence did not indicate that he had occasion to do so.
Mrs. George testified that after the assault the defendant picked something round off the bed and put it in his pocket and was hunting for something else and told her he was hunting a hammer handle. A hammer handle, broken near the head, was found on the floor in articles near the head of the bed the following day. The hammer head was not produced. The brother's wife identified the handle as that of her husband's hammer, which had been loaned to the defendant. The shirt which the defendant was wearing the night of the crime was not found. Overalls identified as those which he was wearing the morning after the crime had blood stains upon them but the expert was unable to say whether or not it was human blood.
The defense was an alibi. As to the time of the crime, it consisted of the testimony of the defendant's daughter who stated that her father slept that night at her home, apparently in the same room with her and her husband, that she was up four times after 11 o'clock with a sick baby and was awake on other occasions, and that on every occasion her father was in bed and asleep. He was there when officers came about 5:30 a. m. to get him. He was later released and again arrested about noon the same day.
Several statements which the defendant made to the officers when they were investigating the offense were related to the jury and checked and evidence offered tending to disprove their truth.
In all of the evidence there are many contradictions.
The defendant waived a preliminary hearing. The information was filed in the district court on September 24, 1941. Preliminary to the trial defendant made an application for a change of venue. This was overruled. He then challenged the array. This was overruled. He then moved for a continuance over the term....
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