O'Connor v. State
| Decision Date | 08 July 1932 |
| Docket Number | 28266 |
| Citation | 243 N.W. 650,123 Neb. 471 |
| Parties | THOMAS PAT O'CONNOR v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt." Williams v. State, 115 Neb. 277, 212 N.W. 606.
2. " Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening its credibility." Comp. St. 1929, § 20-1211.
3. In the cross-examination of a defendant who voluntarily becomes a witness in his own behalf, considerable judicial discretion is committed to the trial court to go beyond the literal scope of the direct examination in matters testing the accuracy, memory or credibility of the witness.
4. Evidence as to misconduct of prosecutor and the rulings of the court thereon examined and held not to affect the substantial rights of the defendant. Comp. St. 1929, § 20-853.
Error to District Court, Lancaster County; Shepherd, Judge.
Thomas Pat O'Connor was convicted of entering the building of a bank by violence and by putting in fear certain named officers with intent to steal, and he brings error.
Judgment affirmed.
Donald Gallagher and T. C. Gaughan, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY and PAINE, JJ., and HORTH, District Judge.
Defendant was convicted on a charge--under section 28-537, Comp. St. 1929--of entering the building of the Lincoln National Bank & Trust Company, on September 17, 1930, by violence and by putting in fear certain named officers of the bank, with intent to steal. Sentenced to the penitentiary, he brings error proceedings.
The brief of defendant says: "The only question involved in the whole case was this: Did Thomas Pat O'Connor stand in front of the Lincoln National Bank with a machine gun during the robbery?" O'Connor was a witness for himself. He testified he was never in the state of Nebraska, did not rob the bank in question and was in East St. Louis, Illinois, on September 17, 1930. He testified to certain facts indicating that on September 16 and 17, 1930, he was in his home town dealing with a motor company in the exchange and delivery of his car for a new one. Officers and employees of the motor company and others corroborated him both orally and by documentary evidence as to his presence at East St. Louis on the day the bank was robbed in Lincoln. Several witnesses for the state had positively identified defendant as participating in the robbery of the bank by guarding the outside of the bank with a machine gun while his associates were engaged in looting the bank and depository. On this conflicting evidence the jury believed the witnesses for the state. The question was for the jury to decide. "This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt." Williams v. State, 115 Neb. 277, 212 N.W. 606.
The chief error assigned and relied upon arises out of the cross-examination of defendant. The testimony of defendant was confined to his denial of his presence in Nebraska and of his participation in the robbery; and to details as to his presence in Illinois at the time of the robbery. It is claimed that error was committed in allowing his cross-examination to go beyond the scope of his examination as a witness for himself. The following instances are set up:
(1) Having answered questions showing his acquaintance with Pop Lee, Gus Winkler and others, defendant was shown a group photograph in which the witness appeared with some of them. While being interrogated about Winkler, he was asked if he was not "arrested in company with him at that time," and answered, "I think I was." His counsel objected to the matter as prejudicial, moved to strike the answer as made before he had a chance to object and asked the court to instruct the jury to disregard it. He was overruled. (2) Having declared he did not know whether Winkler is a licensed airplane pilot and knew nothing whatever about him, the county attorney asked defendant: "Well, you knew him well enough to be arrested with him, didn't you?" The court sustained an objection to this but declined to caution the jury to disregard it. (3) Defendant was asked if he had been convicted of a felony in Louisville, Kentucky. Objection to the question was overruled and he answered in the negative. He was then asked if he was not out on a $ 20,000 appeal bond to the supreme court. Objection to this was sustained; the court instructed the jury to disregard the question and cautioned counsel not to proceed further with questions of that character. (4) Defendant was shown some record (not described), asked to "glance through there" and to tell whether he was the party referred to. Over objection he answered in the affirmative. (5) Defendant was asked whether he was not arrested on October 22, 1929, in New York City and gave his name as "Thomas Donovan." On objection and request to instruct the jury to disregard the question, the court overruled the objection and received the answer merely, as the court said, "for the purpose of testing the memory" and "is not to be considered as in any wise proving that he had been guilty of anything else." He answered in the affirmative. (6) A similar question, situation and ruling arose with reference to his giving the name of "Thomas J. Gleason" in Peoria, Illinois, on June 7, 1929, and defendant answered he could not remember.
While the trial court gave the purpose of the admission of certain of the above evidence in the cross-examination of O'Connor as testing his "memory," the ultimate purpose of such a cross-examination as we have recited was to enlighten the jury as to the accuracy, memory veracity or credibility of the witness. Considerable judicial discretion is committed to the trial court in admitting evidence seeking to bring to light collateral facts bearing on the truth and impartiality of the witness. 28 R. C. L. 607, sec. 197. It is a relaxation of the general rule as to cross-examination ordinarily being confined to the scope of the direct examination and to strictly relevant issues. In this state the legislature has sanctioned it by providing in the Code: "Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening...
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