Clements v. State
| Decision Date | 18 December 1907 |
| Docket Number | 15,208 |
| Citation | 114 N.W. 271,80 Neb. 313 |
| Parties | FRED CLEMENTS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Sarpy county: GEORGE A. DAY, JUDGE. Affirmed.
AFFIRMED.
B. S Baker, James T. Begley and F. G. Hamer, for plaintiff in error.
W. T Thompson, Attorney General, and Grant G. Martin, contra.
Fred Clements, who was the defendant in the district court, was charged with the killing of one Luke Goldie. He was convicted of the crime of murder in the second degree, and brings the case here for review.
We learn from the record that at the time of the killing, the defendant resided on the east side of Chicago street, which is an extension of Twenty-Seventh street of South Omaha. The deceased resided on the west side of said street, about 50 feet south of the Clements residence, his lot being the second one south of the intersecting street which is known as Grace street. Chicago street runs north and south. Grace street runs east and west. On the evening of the 3d day of August, 1906, the deceased returned to his home from South Omaha with a one-horse wagon loaded with bricks. If we are correct in our understanding of the evidence, the homes of the deceased and the defendant are located on a hill, or on the side of a hill. In driving up this hill with his load of bricks, the deceased stopped his horse to rest in front of the barn gate of the defendant. He then drove on to his own home. One Frank Gurness was assisting him, and on his arrival in his own yard the deceased heard his dog howling over at the defendant's place, and said to Gurness: "You unhitch the horse, and I will go and see about my dog." He then walked across the road to the defendant's fence. Several persons, among whom were two women, accompanied him. He found one of the Clements boys abusing his dog, and asked what he was doing. The defendant was near by with a gun in his hand, and his sons were also present. As soon as the deceased made the inquiry above quoted, the defendant gave the order to shoot, and immediately the firing began. The deceased, together with those who had accompanied him, rushed back toward his house, and, while running, he was struck in the leg by one of the bullets. About the time he arrived at the northeast corner of his home Gurness came from the horse and wagon, and assisted him into the house. He was also followed and assisted by his wife. Gurness took him through the kitchen into the front room, and about this time one Frank Gendra came from the Sofal house, which is located immediately south of the home of the deceased, entered the west door and passed through the kitchen into the front room. There he found Goldie and Gurness. The deceased showed him the wound in his leg; and, while Gendra was standing near the east window, the firing began a second time. Several shots were fired, some of which passed through the window, breaking the glass and knocking it into Gendra's face. One of the shots struck the deceased in the side. He fell to the floor, and died the same night from the effect of this wound. The bullet which caused his death, and which was taken from his body, was shown to be from a 38-caliber rifle. The defendant was seen in the yard with his gun at or near the time the deceased received the fatal wound. The defense which seems to be most relied upon was an alibi.
The defendant's first contention is that the court erred in allowing one John McBride to testify against him, because the name of said McBride was not indorsed on the information. It appears that after the state had produced its evidence in chief and rested, the defendant, and other members of his family, testified in substance, that he and his son Henry had gotten into a buggy prior to the shooting, and driven out of the wagon gate, thence north about 450 feet to the county line road, thence west about 600 feet, thence south on Duncan street about 450 feet, thence east on Grace street to the wagon gate, from whence they started; that after they had reached a point about half way round the square above described, and while near the intersection of the county road and Duncan street, the shooting commenced at the Goldie and Clements residences and continued for some time, but was all over before they returned to the vicinity of the Goldie residence. It was also claimed that the first shots fired were from the Goldie residence toward the Clements house, and were thereafter interchanged from each of the two residences. To rebut this evidence the state called several witnesses, among whom was John McBride, and after the usual preliminary questions the prosecuting attorney asked him the following question: "Did you see the defendant, Fred Clements, during the shooting which occurred near the Goldie premises on the evening of August 3d last?" No objection was interposed to this question, and the witness answered: "Yes, sir." Then followed the question: "Where was he?" This was objected to by the defendant, and was not answered. The prosecutor then asked the witness: "Did you see all of the shooting that occurred there on the evening of August 3d?" This was objected to by the defendant as being "incompetent, irrelevant and immaterial, and not proper rebuttal; the witness' name not being indorsed on the information, and leading and suggestive and not calling for the fact." The objection was sustained. The prosecutor then asked the following: "Mr. McBride, at any time during the shooting in the vicinity of the Goldie and Clements premises on the night of August 3d last, was the defendant, Fred Clements, on the county line road, or on the road running north and south in the vicinity of Shellhardt's, or at any time during that shooting was he on the road leading north and south between Shellhardt's and Bradford's, or between Bradford's and the clump of trees testified to, immediately east of Bradford's?" This was objected to as being incompetent, irrelevant and immaterial, and not proper rebuttal, and for the further reason that the witness' name was not on the information, and was leading, suggestive, and not calling for the fact. The objection was overruled, and the witness answered: "He was not." He was next asked: "At any time during the shooting in the vicinity of the Goldie and Clements premises, on the night of August 3d last, was the defendant, Fred Clements, in a buggy, upon any portion of the road we have described to you in the previous question?" To this question the same objection was interposed, which was overruled, and the witness answered, "No, sir."
In Kelly v. State, 51 Neb. 572, 71 N.W. 299, it was said: "Where it becomes necessary to call persons to testify in rebuttal of testimony introduced on behalf of an accused in his defense, or if it is rendered necessary by a material issue raised for the first time in the case by the evidence for the defense, and the evidence sought to be introduced on rebuttal is obviously and purely rebuttal in its nature, it may be given by witnesses whose names were not indorsed on the information"--citing Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343; State v. Parish, 22 Iowa 284; State v. Ruthven, 58 Iowa 121, 12 N.W. 235; State v. Huckins, 23 Neb. 309, 36 N.W. 527, and Fager v. State, 49 Neb. 439, 68 N.W. 611. The record discloses that the defendant introduced evidence tending to establish an alibi. By such evidence he located himself in a buggy, driving over the road described by the question of the prosecutor, during the time the shooting in question was going on. That it was the province and the duty of the prosecuting attorney, if he could do so, to show on rebuttal that the defendant was not in the place mentioned and described in his evidence, there can be no doubt, and that this was the purpose in calling McBride as a...
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