Boeche v. State
| Decision Date | 19 May 1949 |
| Docket Number | 32566. |
| Parties | BOECHE v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An instruction in a criminal case that 'you have no right to reject the testimony of any of the witnesses without good reason, and you should not do so until you find it irreconcilable with other testimony which you may find to be true,' held to be erroneous and ordinarily prejudicial.
2. The polygraph, commonly known as a lie detector, used for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory.
James F. Begley, Plattsmouth, Lloyd E. Peterson Nebraska City, for plaintiff in error.
James H. Anderson, Atty. Gen., William T. Gleenson, Asst. Atty Gen., for defendant in error.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
Eileen Boeche, hereinafter referred to as defendant, was charged with the crime of uttering and publishing two bank checks as true and genuine when in fact they were false or forged instruments. She was convicted and sentenced to serve a term in the Nebraska Reformatory for Women. She prosecutes error to review the record of her conviction.
It appears from the record that the cashier and filing clerk of Soennichsen's Mercantile Store located at Plattsmouth Nebraska, returned to her duties at 7:15 p. m., December 20 1947. This witness testified that at that time a saleslady was present in the office who took care of the same in her absence. Between 7:30 and 8 p. m., a customer whom she later identified as the defendant was in the office and the saleslady had a check which was dated December 19, 1947, made payable to the order of Barbara Hale in the amount of $46.75, signed by Ann Mangel. A notation appears in the lower left-hand corner of the check, 'Ann's Dress Shop, Nebr. City, Nebr.' The saleslady presented the check to the cashier to be cashed. The cashier asked the defendant where she got the check to which the defendant replied that it was a salary check for work done in Ann's Dress Shop at Nebraska City. The cashier then asked her if she knew a Dorothy Zimmerman at Nebraska City. She did not know such person. The check was then cashed. This witness was not positive that she saw the defendant endorse the check. The check was taken to a bank the following Monday and was returned for the reason that it was a false and fraudulent check and no such party or place of business existed in Nebraska City as appeared thereon. The cashier then gave the bank the amount of the check, $46.75. This witness further testified that at the time of the transaction the defendant was wearing either a black or navy blue coat of soft wool material. She did not know what kind of a hat the defendant wore. The saleslady who received the check identified the defendant as the person who gave it to her, and corroborated the cashier's testimony.
The sheriff of Otoe County, who was also the chief of police of Nebraska City, testified that there is no such place of business in Nebraska City as Ann's Dress Shop; and that he has known and been acquainted with the defendant who has resided in Nebraska City for 10 or 12 years.
The cashier of the Otoe County National Bank, the bank upon which the checks in this case were drawn, testified that he was not acquainted with an Ann Mangel, a Barbara Hale, nor the defendant; that there was no such place of business in Nebraska City as Ann's Dress Shop; and that the bank had no account in the name of Ann Mangel.
The manager of the Ladies Toggery since 1919, a store in Plattsmouth, testified he saw a customer whom he later identified as the defendant in the store between 8:30 and 9 p. m., on December 20, 1947, at the time he was waiting on a customer and the defendant was standing in about the middle of the store. A saleslady gave him a check presented by the defendant in payment for some merchandise, for him to O.K. This check is identical in the handwriting and in the amount as the check previously described, with the same payee and the same maker. The only difference is in the number. This witness asked the defendant if this was her check and she said it was and that she received it for working in Ann's Dress Shop. He then asked her for her social security number as identification. She said she was sorry, she had lost it the day previous. She had a pass book, opened it, and it showed deposits. The manager did not notice the name on the pass book. He told the defendant he did not know any dress shop in Nebraska City by that name, Ann's Dress Shop. She said it had been there for some time. He did not see the defendant endorse the check. The bank returned the check for the reason it was a false and fraudulent check, and the store returned the amount of $46.75 to the bank. The defendant had on a black coat and a small hat on the back of her head.
The saleslady who sold the merchandise to the customer who had been identified as the defendant, failed to identify her, but remembered the transaction with reference to the check and the conversation between the manager of the store and the customer as related by him, and corroborated his testimony in such respect.
The witness Louis Boeche testified that he was a mechanic junior grade in the Army Engineers and had been so employed for a period of two months prior to the time of the trial; before that time he was a sheetmetal worker with the Bell Gas Appliance Company located at Nebraska City; that he had known the defendant almost a year, and was married to her on December 24, 1947; that on the evening of December 20, 1947, he left his work at approximately 6:15 p. m., went home, took a bath, shaved, and sat down to lunch at 6:45 p. m., and that the defendant was with him. He was living at his mother's home. They were going to shop for shoes for him, and left his mother's house about 7:20 p. m. They walked up town in Nebraska City, going directly to Homeyer's Shoe Store, where he bought a pair of shoes and was waited on by one Jack Hall. The defendant was with him at the time. He told the defendant that he was going to pick out the shoes himself, and she was to say nothing about them, so while he and Hall, the clerk, were talking, Hall asked the defendant why she did not say anything and if she had laryngitis because she was not talking. She informed him that she was to say nothing about the shoes. This witness and the defendant left the shoe store to go to a bakery and cafe a short distance from the shoe store where they had a cup of coffee and a sandwich, and here the defendant called her mother with reference to some ribbon for Christmas decorations for the front door. They were in the cafe at least 20 minutes. From the cafe they proceeded to the Dammast Clothing Store where about a week prior this witness had purchased a suit. The pants had been taken to the store to be shortened, and he was to pick them up before closing time on this evening. This was about 8:30 p. m., and the defendant was with him. He and the defendant then left the clothing store and went to the Arbor Theater, and she was carrying some packages. They sat in front of a Mr. and Mrs. Harvey Mead who resided at Sidney, Iowa. There was a serial playing, and Harvey Mead wanted to see it the second time. There was some conversation with reference to the matter. This witness and the defendant left the Arbor Theater at 11:15 p. m., and took a taxi. He went to his home and the defendant went to her home. The effect of the testimony of this witness was that the defendant was with him from 6:30 until 11:15 on the night of December 20, 1947.
Jack Hall, the shoe clerk, testified that he saw Louis Boeche and the defendant in the shoe store on the evening in question around 8 o'clock. On cross-examination he refused to say positively that on December 20, 1947, he sold a pair of Air-O-Magic shoes to Louis Boeche. Such a pair of shoes was sold that Saturday night, but he would not say they were sold to Louis Boeche.
Harvey Mead testified that on the evening in question he was in the Arbor Theater with his wife and saw Louis Boeche and the defendant come to the picture show between 8:30 and a quarter till nine, and that the defendant had some packages which she was carrying.
The defendant's father testified that he was a civil engineer with the Army Engineers and had been so employed for 26 years; that on the evening in question he took the defendant to the Meredith residence, Mrs. Meredith being Louis Boeche's mother, at about 6 p. m., and that the defendant came home that evening at approximately 11:30 p. m. He fixed the date because he was preparing to decorate a Christmas tree the following day.
Mary Ann Meredith testified that she is the mother-in-law of the defendant, and that the defendant came to her house for dinner just after 6 p. m., on the evening in question. She left her home about 7 p. m., that evening, and the defendant was still at the house.
Betty Ruth Mead testified that she is acquainted with the defendant and saw her on the evening in question when she sat in front of the witness and her husband at the Arbor Theater, and that Louis Boeche and the defendant came into the theater about a quarter to nine.
Wilson Sigerson, Jr., testified that in December 1947, he was employed on Saturdays at the Dammast Clothing Store, and saw the defendant and her husband in the store between 8 and 9 o'clock that evening. It could not have been as late as 9:30 p. m., for the reason the store closes at 9 p. m. He was not positive as to the date.
Louis E Harris testified that he is a resident of Lincoln; that for 15 years he has been a chemist...
To continue reading
Request your trial