Carter v. State

• Decision Date: 02 October 1915
• Docket Number: 19149
• Citation: 154 N.W. 252,98 Neb. 742
• Parties: ARTHUR B. CARTER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

154 N.W. 252

98 Neb. 742

ARTHUR B. CARTER v. STATE OF NEBRASKA

No. 19149

Supreme Court of Nebraska

October 2, 1915

ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Adams & Jeary, for plaintiff in error.

Willis E. Reed, Attorney General, Charles S. Roe and Jesse B Strode, contra.

FAWCETT J. HAMER, J., not sitting.

OPINION

FAWCETT, J.

From a conviction of the crime of robbery, in the district court for Lancaster county, the defendant has prosecuted error to this court.

The brief of plaintiff in error, who will be designated as defendant, assigns 12 errors. The first nine assignments relate to the rulings of the court in the admission and exclusion of evidence. When the questions and answers referred to in these assignments are taken in connection with their context, it becomes apparent that no prejudicial error, if any at all, was committed.

The ninth assignment assails the ruling of the court in sustaining a motion to strike the answer to a question propounded to defendant while testifying as a witness in his own behalf. The crime with which defendant was charged, if committed by him, was committed in connection with one Frank Conan, who had testified as a witness for the state. Defendant was being interrogated as to Conan and had testified that he knew him. "Q. I will ask you, Mr. Carter, were you with Frank Conan on Saturday night the 1st day of August last? A. No, sir. Q. I will ask you, do you know where you were Saturday night the 1st day of August? A. I certainly do. Q. Now, Mr. Carter, just tell the jury where you were and who was with you Saturday night, the 1st day of August. A. On Saturday night, the 1st day of August, I had an appointment with Harry Smith and Lee Chester at the pool hall, I don't remember who was owning it then, Eskew or Seiford, between O and P on Eleventh street, and I met him there, and we went down to Rohrig's saloon, or Jetter's saloon, which is the same thing, the same place, and had three glasses of beer, and came back to the pool hall, and got the horse and buggy, and went out over the O street viaduct, dug some fish worms on the north side of the road, came back to town, and went out to Eleventh and B, and we stopped at a store, and Harry Smith and Lee Chester went in and bought some lunch, and we went on out to High street over to Fourteenth, and on out three or four miles to the creek, and fished all night, and along about, oh, I should judge anywhere from 7 to 9 o'clock, we started back the next day, on Sunday, and I was not in town at any time during that time. I have been persecuted in this town for years by Jim Malone.

"Mr. Hager: The defendant moves to strike out the answer as not responsive to the question. Sustained. The defendant excepts."

The ninth assignment refers to the sustaining of this motion. A simple reading of the answer and the motion gives color to defendant's assignment, but it is argued with much force by the state that the motion to strike related simply to the last sentence in the answer, viz.: "I have been persecuted in this town for years by Jim Malone." (Mr Malone was chief of police.) The answer above quoted up to this last sentence was so clearly responsive to the question, and the last sentence so clearly not responsive thereto, that it is apparent that counsel on both sides, the court and the jury could not have understood that any of the answer was stricken but the last sentence. The next question asked by counsel for defendant indicates that he so considered it. The question was: "What time did you get back to Lincoln, Mr. Carter?" No objection was interposed to this question by the state, and he answered: "Oh, I should judge, I don't remember the exact time, sometime in the forenoon, 9 or 9:30, somewhere like that, I don't remember the exact time. I have no reasons to remember it." It will be seen that this question called for a continuation of the answer which the witness had just given. If that answer had been entirely stricken out, the question and answer last cited would have been unintelligible, as it would not be a continuation of anything which had preceded it. That the whole answer under consideration was not considered as having been stricken out is further shown by the cross-examination of the defendant. He was asked: "Q. And it was on the 1st of August, you remember very distinctly, that you went fishing? A. Oh, yes, sir. * * * Q. Was there any particular reason why you should go over to the viaduct to get the bait on the 1st of August? A. Yes, sir; when we all got back we thought Chester would have the bait, and when he...