Clark v. State

• Decision Date: 12 July 1907
• Docket Number: No. 14,917.,14,917.
• Citation: 113 N.W. 211,79 Neb. 473
• Parties: CLARK v. STATE.
• Court: Nebraska Supreme Court

79 Neb. 473

113 N.W. 211

CLARK

v.STATE.

No. 14,917.

Supreme Court of Nebraska.

July 12, 1907.

Syllabus by the Court.

Where the question as to the alleged misconduct of an attorney in his argument to the jury has been submitted to and decided by the trial court on conflicting evidence, such decision will not be disturbed, unless it is unsupported by the testimony and is clearly wrong.

In cases where the guilt of the defendant depends upon the intent, purpose, or design with which the act was done, or upon his guilty knowledge thereof, the rule is that collateral facts in which he bore a part occurring immediately before and leading up to the transaction complained of may be examined for the purpose of establishing such guilty intent, design, purpose, or knowledge, even though such facts show the commission of another crime.

Error cannot be successfully assigned for the giving of an instruction because it fails to cover all of the questions of law arising in a criminal prosecution, if the instructions, when considered as a whole, fairly and correctly state the law applicable to the facts of the case as disclosed by the evidence.

Ordinarily, where the bill of exceptions shows upon its face that it is incomplete and does not contain all of the testimony, the Supreme Court will refuse to consider it; but in a capital case the court will carefully examine the whole record, and determine for itself the sufficiency of the evidence contained in the record to sustain the conviction.

Error to District Court, Douglas County; Sutton, Judge.

Harrison Clark was convicted of murder in the first degree, and brings error. Affirmed.Wm. H. Crow and J. B. Strode, for plaintiff in error.

W. T. Thompson and G. G. Martin, for the State.

BARNES, J.

Harrison Clark, Calvin Waln, and Clarence Gathright were jointly charged in the district court of Douglas county with the murder of one Edward Flury while attempting to rob him. Clark, who will hereafter be called the defendant, demanded a separate trial, which was granted. He was convicted of murder in the first degree, as charged in the information, and the jury fixed death as his punishment. To reverse the judgment rendered on the verdict, he brings the case here by a petition in error.

The record discloses that on the evening of March 7, 1906, defendant went to the home of James Ross, in South Omaha, and borrowed a 38–caliber Harrington & Richardson revolver. Later that evening, in company with Calvin Waln, he went to the home of the latter in said city, where he found Clarence Gathright, Mrs. Ewing, Mrs. Waln, and a man, whose name is not disclosed, and they spent the evening together, talking and drinking beer. Waln, Gathright, and the defendant remained in the house until about 10:30 o'clock, when Waln took some hoods and masks, made by Mrs. Waln, in a V–shape, which fitted over the head, exposing the eyes only, and the three men left the house together. From there they went west to a saloon at Thirty–Second and Q streets, then south to Thirty–Second and R streets, and stopped at another saloon. Defendant asked Gathright to put on a mask. All three put them on, and defendant entered the saloon by the front door, the other two by the side doors. After leaving this saloon, they removed their masks, and went to Thirtieth and U streets, where they stopped at a third saloon. Defendant went to the window, came back, and ordered the other two men to put on their masks. The defendant then entered the front door, and the others the side door of the saloon. At one of the saloons the defendant got another revolver, which he gave to Gathright. After leaving the last saloon, they took off their masks and went to the vicinity of the Rock Island depot. While at that place, they saw a motor car, on what is called the “Walnut Hill Line,” going south; and defendant said: “There goes a car. We will get that one.” They walked on until they came to a car standing just east of the switch on the Benson & Albright line. Just at that time Edward Flury, the conductor, got off to throw the switch, and was attacked by Waln and the defendant, with the order: “Hands up!” Flury replied with a shot. Waln shot at him. Defendant then stepped out from a place where he was partially concealed, ran up to the conductor, and a number of shots were exchanged. Flury received bullet wounds in the wrist and the abdominal cavity, from the effects of which he died in about six days.

The assignments of error presented by the defendant's counsel will be discussed in the order of their presentation.

1. His first contention is that the judgment of the district court should be reversed because of the alleged misconduct of the prosecuting attorney in his closing argument to the jury. The record of the trial fails to disclose the misconduct complained of, and is silent as to any objection to or ruling of the trial court on the remarks alleged to have been made by the prosecuting attorney, which are the basis of this contention. The question appears to have been raised for the first time on the defendant's motion for a new trial, and was presented by affidavits on the part of the defendant, which were controverted by the affidavits of the prosecuting attorney and his assistants. The district court found that the remarks attributed to the county attorney had not been made. The trial judge is presumed to have heard all that was said by the attorneys, and has decided this question on his personal knowledge and conflicting evidence in the form of affidavits, and his findings thereon should not be disturbed. Cunningham v. State, 56 Neb. 691, 77 N. W. 60.

2. It is contended that the defendant was not properly represented in the trial of this case, on account of the ignorance and incompetency of the attorneys appointed by the court to defend him, that his legal rights were not properly safeguarded and protected, and that his attorneys permitted testimony to go to the jury, unobjected to, of distinct and separate robberies which had no connection with the crime for which he is being prosecuted. This contention is not well founded. It appears from the record that the defendant's rights were properly protected; that his attorneys not only safeguarded his rights, but actually preserved and prepared the record which is now before us.

3. The defendant insists that the district court erred in admitting the evidence of Clarence Gathright, H. H. King, Julius Grimm, Scott Holbrook, Joe Trapp, and Lee Burket as to the hold–up and robbery of the saloons on Thirty–Second and Q streets, and Thirty–Second and R streets, and Thirtieth and U streets, all in South Omaha, because each of said transactions was a separate and entirely different crime from that charged in the information. The record shows that the transactions which occurred at the saloons above mentioned were carefully excluded from the jury. The state, by the evidence complained of, merely traced the defendant and his associates from the time they left the house of Calvin Waln until the time they arrived at the place where Flury was murdered. It was shown by the evidence that the three defendants named in the information were at the several saloons above described; but nothing was said by the witnesses as to what was done by them at those places. It was incidentally shown, however, that the defendant got a revolver at one of the saloons, which he delivered to Gathright, and there was a division of money between them. Now, if the defendant had purchased a revolver at a hardware store, while on his way to the scene of the crime, there would be no question about the admissibility of evidence to establish that fact. Neither would the fact that he procured the revolver by holding up a saloon keeper prevent its admissibility, although it incidentally connected him with another crime. Apparently every effort was made by the prosecuting attorney and the court to exclude all evidence of other transactions prejudicial to the rights of the defendant. It would seem, however, that the prosecution would have been justified in going into the transactions at the saloons mentioned, and might have been allowed to show fully what there occurred. Such evidence would have been admissible for the purpose of establishing the intent of the...