Cramer v. State
| Decision Date | 21 July 1944 |
| Docket Number | 31805. |
| Citation | 15 N.W.2d 323,145 Neb. 88 |
| Parties | CRAMER v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A plea in abatement which raises an issue of fact must be tried by a jury. If it raises only a question of law, the court may properly determine the issue.
2. A defendant cannot properly dispute the record made by an examining magistrate in a preliminary hearing by a plea in abatement in the district court. If the findings and judgment of the examining magistrate do not correctly reflect the record, proper steps should be taken to correct it in the court where it was entered.
3. A plea in abatement is a dilatory plea, not favored by the courts, which must be pleaded with strict exactness. Any material variance between the pleading and proof is fatal to the plea.
4. An information charging murder in the first degree by the administration of poison, drawn in the form prescribed by the court in Davis v. State, 116 Neb. 90, 215 N.W. 785, is sufficient to charge such offense.
5. In a criminal case the trial court is invested with a broad judicial discretion in allowing or denying an application to require the state to produce written confessions, statements and other documentary evidence for the inspection of defendant's counsel before the trial. Error may be predicated only for an abuse of such discretion.
6. Communications not necessary and proper to the discharge of a physician's professional duties or services are not privileged within the meaning of the statute forbidding the disclosure of confidential communications between physician and patient.
7. Whether a confession is admissible in evidence is in the first instance for the court, and, if the court determines as a matter of law that it was not voluntary, the confession should be rejected. Where the confession is received in evidence, its voluntary character is still a fact question to be determined by the jury.
8. A confession otherwise voluntary is not affected by the fact that improper inducements had been previously made where it appears that such improper influences were not operating when the confession was made.
9. An argument by a prosecuting attorney, which is based on the evidence and inferences drawn therefrom, does not ordinarily constitute misconduct.
10. Evidence examined and held sufficient to sustain a conviction for murder in the first degree by the administration of poison.
Anderson Storms & Anderson, of Holdredge, and Perry, VanPelt & Marti, of Lincoln, for plaintiff in error.
Walter R. Johnson, Atty. Gen., Rush C. Clarke, Asst. Atty. Gen., H Emerson Kokjer, Deputy Atty. Gen., and D. A. Russell, Co. Atty., of Alma, for defendant in error.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
Plaintiff in error, who will be hereafter referred to as the defendant, was convicted of first degree murder and sentenced to serve the balance of his life in the state penitentiary. Defendant brings the case to this court for review.
The record shows that defendant was married to Ilene Malone on May 2, 1942, and that they thereafter moved onto and farmed the land upon which they were living at the time the defendant was charged with the crime of which he now stands convicted. On May 9, 1943, a daughter, Janice Mae Cramer, was born. In the early morning hours of June 11, 1943, Janice Mae Cramer died of strychnine poisoning. The body of the child was taken to Dr. K. C. McGrew of Orleans, who directed that the baby's stomach be removed and caused its contents to be examined. The analysis of the contents of the stomach revealed the presence of strychnine in a quantity sufficient to cause death.
The county attorney undertook an investigation of the case in the course of which he took statements from various members of the Cramer family. At this time defendant accounted for the presence of strychnine in the baby's stomach by stating that he and his father had previously purchased some strychnine to kill prairie dogs, that they had mixed about half the strychnine with oats and left the remainder in a bottle in the tool shed. It also appears that a quantity of the oats to which strychnine had been applied had been left in a sack in the tool shed, that they had become spilled and defendant had replaced them with his hands as he was on the way to do the evening milking, that he wiped his hands on his trousers and proceeded to milk the cow which provided milk for the baby. Defendant's story was that in this manner the strychnine found its way into the baby's food and subsequently into its stomach.
Defendant was subsequently taken into custody and after considerable questioning he admitted that he put a pinch of strychnine in one of the baby's feedings. The confession was thereupon reduced to writing by an official court reporter and signed by the defendant after certain changes were made and authorized by him. A complaint charging first degree murder was then filed in the county court, to which defendant in open court entered a plea of guilty. The evidence further shows that defendant's father talked with defendant in the county jail in the presence of witnesses, at which time defendant admitted the commission of the crime in substantially the same language as was contained in the written confession.
The record further shows that in September or October, 1942, defendant learned that his wife was pregnant. He admits that he persuaded his wife to submit to an abortion and that they approached two physicians for the purpose of having such an operation performed. Both physicians advised against any such operation and refused to have anything to do with it. It also appears that defendant was farming an 811-acre farm, which he had recently contracted to purchase from his father, that he was unable to hire sufficient help and that his wife, immediately prior and after the birth of the child, had been able to help him much less with the chores and farm work. He complained about the child keeping him awake nights and evinced other evidence of irritation because of the baby.
It is shown by the evidence that the child was being fed a combination of prepared baby food and cow's milk. It was the custom of the mother each evening to prepare a number of feedings at one time, placing each feeding in a separate bottle. The baby was fed at ten p.m. on the evening previous to its death without showing any ill effects therefrom. It was fed again at two a. m. the next morning and it became ill very shortly thereafter. There is evidence in the record that the child had spasms or convulsions between the time it was fed and prior to its death 30 or 40 minutes later. This, however, was denied in the oral testimony produced at the trial.
There are many discrepanices and changes in the various statements made by the defendant which will not be related here, except as they may become pertinent to matters under discussion. The foregoing is a general statement of the evidence upon which a verdict of guilty was found by the jury.
The defendant alleges that the trial court committed reversible error in refusing a jury trial on the issues raised by the plea in abatement filed by him. The plea in abatement requested the court to quash the information for the reason that no preliminary hearing was had and that no waiver thereof had been made.
The record shows that on August 6, 1943, defendant was taken before the county judge of Harlan county, where a complaint charging first degree murder was read to him and he was asked whether he was guilty or not guilty. The judgment of the county court binding the defendant over to the district court for trial recites the following: * * *.'
The defendant testified that he was taken before the county judge, the complaint read to him, but that he did not answer either 'guilty' or 'not guilty' thereto. Many witnesses were called who testified that defendant answered 'guilty' to the complaint in the manner recited in the judgment entered by the county judge. The defendant contends, however, that the evidence raises a question of fact which only a jury can properly determine.
A plea in abatement is a dilatory plea, not favored by the courts which must be pleaded with strict exactness. The instant plea purports to dispute the findings and judgment of the county court. It is clearly the law of this state that if a plea in abatement raises an issue of fact it must be determined by a jury. If it raises only a question of law, the court may properly determine it. In cases of prosecution by information, when it is claimed there was no preliminary examination of the accused, the question may be determined by a plea in abatement. Cowan v. State, 22 Neb. 519, 35 N.W. 405. But the record shows in the present case that defendant was taken before the county judge of Harlan county, the complaint read to him and inquiry made as to his guilt. The finding and judgment of the county court was that defendant entered a plea...
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