Erdman v. State
| Citation | 134 N.W. 258,90 Neb. 642 |
| Decision Date | 24 January 1912 |
| Docket Number | 17,291 |
| Parties | FRANK ERDMAN v. STATE OF NEBRASKA |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed.
REVERSED.
John O Yeiser and Charles E. Foster, for plaintiff in error.
Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.
OPINION
An information consisting of three counts was filed in the district court by the county attorney of Douglas county, the first count of which charges plaintiff in error with having made an assault upon Thomas Dennison on the 22d day of May, 1910, with intent to murder the said Dennison. No further specification of the manner of the assault is contained in the count. The second count is for the same offense, but contains the averment that the assault was made by placing a suit case, containing dynamite and a loaded revolver, upon the porch of Dennison's residence, the contents of the suit case being so arranged that, when lifted, the revolver would be discharged causing the dynamite to explode. The third count is similar to the second, except that the condition and contrivance of the suit case and its contents are stated with more elaboration, and which need not be here stated. A jury trial was had, which resulted in a verdict finding accused "guilty as charged in the information of the crime of assault with intent to murder." A motion for a new trial was filed, which being overruled, a motion in arrest of judgment was filed, which was also overruled, when plaintiff in error was sentenced to confinement in the penitentiary for the term of 15 years. He brings error to this court.
Testimony was introduced to the effect that on Sunday, May 22, 1910, at about 10 minutes before 3 o'clock in the afternoon, a suit case was discovered standing on the porch of Thomas Dennison; that a screw-eye had been screwed into the porch floor, and a string or cord projecting through a hole in the bottom of the suit case was tied to the screw-eye. It is shown that a few minutes before the suit case was discovered parties were on the porch and no suit case was there. During the time, up to the discovery, persons were in the house, but they knew nothing of the suit case being placed there. A dog was in the house, and the witness who was within heard the dog growl or make some alarm, and she soon afterward went to the door and the suit case was seen. The suit case was picked up by one and dropped to the floor, kicked over by another, picked up again by another and dropped down, and finally was left lying on its side on the porch floor after having been opened, when the parties all went away so leaving it. Later in the afternoon, perhaps about 6 or 7 o'clock, upon the return home of Mr. Dennison, who had been absent during the afternoon, certain policemen were called, who untied the string from the screw-eye, and carried the suit case a short distance from the house and opened it, when certain sticks of substance, said to be dynamite, were discovered, and with them a pistol, said to have been loaded with powder and dynamite, which was so placed that by pulling the string the hammer would be raised as if to discharge the pistol, the force of the discharge reaching the dynamite, and thus producing an explosion. The sticks were removed from the suit case, placed in a bucket, and the whole, with the suit case, carried to the police station, where it was placed in a room in the upper story of the barn used in connection with the police station for the purpose of storing stolen property and such like. Later, during the succeeding week, all the sticks, about 25 in number, were removed to the foundation of a building in the city of Omaha, which was being wrecked, and were exploded in tearing down the foundation of the old building.
Assuming, as we do for the purposes of this opinion, that the contents of the said suit case was taken to the police station, it is unfortunate that some of the sticks were not at once placed in the hands of a competent chemist for analysis. It is insisted that the evidence is not sufficient to show that the sticks were so carefully kept as to render it certain that those used in wrecking the wall referred to were the identical sticks taken from the suit case. It is apparent that the strictest care should have been taken in that regard. It is also unfortunate that the police officers allowed all to be removed from their charge and care and be destroyed in blasting the wall, if they were so destroyed. Some portion at least of the "sticks" should have been carefully preserved in safe hands and presented upon the trial, in order that the fullest and most careful examination might be then made. This was not done, and an element of uncertainty, under the evidence, was presented that might have been avoided. Certain officers and others who saw the sticks testified that they were dynamite, largely basing their judgment on the appearance of the "sticks" and their contents. Some of them testified to having used that substance, but their own testimony showed that they could easily have been mistaken, for a substance was presented to them while on the witness-stand in cross-examination which upon inspection they declared was not dynamite, but which a competent chemist analyzed and found to be that substance. Thus was the probative force of their testimony somewhat at least impaired.
As we have seen, the suit case must have been placed on Mr. Dennison's porch by some one, probably at from 2:30 to 2:45 in the afternoon, while persons were in the house and on the same level of floor. Plaintiff in error is charged with so placing it. The question of his identity becomes a most important one. He is said to have been seen in the neighborhood of Mr. Dennison's home the day and night of the day before (Saturday) and on Friday, two days before. It is shown that he was in the employ of an organization, known as the "Civic Federation," as a detective, and that his duties were to discover and unearth violations of the law in Omaha and elsewhere, and the mere fact of his presence in that part of the city, if he were present, might not raise any presumption that he was there for an unlawful purpose. It is also insisted that he was seen at and near the home of Mr. Dennison about the time the suit case was left on the porch, and one witness testified to having seen him on the porch, but saw no suit case, and did not see his face, except a side view. This witness also testified to having seen some one standing in the street in that neighborhood at about the hour of 12 o'clock, midnight, a night or two before the Sunday in question. His testimony is that he slept in an upper room, and, at the hour named, had occasion to arise to answer a call of nature, when he opened a front window of his room and from which he relieved himself. It was shown that there was a bath-room and water-closet nearly opposite his bed-room, across a hall of about three feet in width, the door of which was not more than seven or eight feet from the head of his bed.
Two witnesses, sisters, testified that on the afternoon of the Sunday in question they had been to a church building in the city, in order to have a picture of a confirmation class taken, and of which one of them was a member. One was 17 and the other 11 years of age. They stated that after leaving the church, which was some distance from their home, they walked home, and on the way they fell in behind a man on the sidewalk near the Dennison residence, who was carrying a suit case similar to the one in evidence, and, after walking near him for some distance, they turned off the walk and went to their home. They did not speak to him nor see his face, they having walked behind him, but they thought they subsequently recognized Erdman as the man. As we have seen, the suit case was discovered upon Mr. Dennison's porch ten minutes before three. No one was seen at or near the suit case, which had been left there a short time before its discovery. Some little time, at least, had been required to place it, for Mr. Dennison testified that the screw-eye was so firmly screwed into the floor that it was necessary to use a claw-hammer in unscrewing it. At least ten minutes were required for the girls to walk from the church to where they followed the man with the suit case. The picture of the class was taken on the front steps of the church. The photograph was introduced in evidence, and the elder of the two sisters was clearly identified in the picture. On the photograph is shown a shadow of the eaves of a building cast upon the side of the church. There was a difference of opinion as to just when the picture was taken, no one of the parties present being able to more than estimate or approximate the time, and, as expressed by some, "guess" at it. The professor of astronomy of the Creighton University made a careful calculation as to just what time the shadow was cast on the place shown in the photograph, and it was found to be 21 minutes and 12 seconds after 3 o'clock, which was after the discovery of the suit case on the porch. We must also add the time required to make such preparation for departure from the church as girls of that age usually take, and the time occupied in the walk referred to. It thus appears that the person seen by the girls was not the one who placed the suit case upon the porch.
We find it impossible to review all the evidence submitted to the jury without extending this opinion to an unreasonable length, and, as the cause will probably be tried again, it would be improper for us to do so, but these suggestions are made as calling attention to what seem to us to be more or less vital questions...
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