Erving v. State
| Decision Date | 29 July 1962 |
| Docket Number | 34912,Nos. 34911,s. 34911 |
| Citation | 116 N.W.2d 7,174 Neb. 90 |
| Parties | Jerry ERVING, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. Milton HOWARD, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. As a general rule, evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution.
2. However, in crimes involving motive, criminal intent, or guilty knowledge, evidence of independent crimes wholly disconnected with the one charged may be received.
3. When a defendant in a criminal case testifies in his own behalf he is subject to the same rules of cross-examination as any other witness and may be required to testify on his cross-examination as to any matter brought out or suggested by him on his direct examination, and ordinarily he cannot avail himself of the objection that the evidence may incriminate him.
4. The cross-examination of a witness which relates to the issues and facts pertinent thereto may be pursued by counsel as a matter of right, but when the object of the cross-examination is to collaterally ascertain the accuracy or credibility of a witness, some latitude should be permitted. The scope of such latitude is ordinarily subject to the discretion of the trial court and, unless abused, its exercise is not reversible error.
5. By section 29-102, R.R.S.1943, the term 'felony' signifies such an offense as may be punished with death or imprisonment in the penitentiary.
6. A conviction by a court-martial is a felony within the Nebraska definition if the offense for which the conviction is had may be punished by imprisonment in a penitentiary.
7. Objection to the admission of evidence cannot be considered by this court for some reason not properly and timely raised at the trial.
8. It is no part of the duty of this court to search a voluminous record for the purpose of ascertaining if there is error in it.
9. The function of an assignment of error is to specifically point out the exact instance of the alleged error.
10. All evidence obtained by searches and seizures in violation of the Fourth Amendment to the federal Constitution is, by virtue of the due process clause of the Fourteenth Amendment, guaranteeing the right to privacy free from unreasonable state intrusion, inadmissible in the courts of this state.
11. To be available, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.
12. In order that assignments of error as to the admission or rejection of evidence may be considered, the holdings of this court require that appropriate reference be made to the specific evidence against which objection is urged.
13. 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 copies of statements and other documentary evidence for the inspection of defendant's counsel before trial. Error may be predicated only for an abuse of discretion.
Schrempp & Lathrop, Omaha, for plaintiff in error Jerry Erving.
O'Sullivan & O'Sullivan, David Lathrop, Omaha, for plaintiff in error Milton Howard.
Clarence A. H. Meyer, Atty. Gen., Cecil Brubaker, Asst. Atty. Gen., Lincoln, for defendant in error.
Heard before SIMMONS, C. J., CARTER, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ., and CHADDERDON, District Judge.
These are two criminal actions instituted in the district court for Douglas county by separate informations charging Jerry Erving and Milton Howard with murder in the first degree. The cases were consolidated for trial. The jury found the defendants guilty and fixed their punishment at life imprisonment. Both defendants appeal.
The record is voluminous and it will serve no useful purpose to attempt to summarize all the evidence. The defendants do not question its sufficiency to sustain the convictions. Suffice it to say that it was more than ample if believed by the jury to sustain a conviction. We therefore will attempt only the briefest outline.
On December 27, 1959, Edward Ellis and Dorothy Elliott were found dead in an upstairs apartment they shared. Each had been shot twice in the head, once with a 38-caliber bullet and once with a 22-caliber bullet. Each had died of the gunshot wounds.
Edward Ellis, hereinafter referred to as Ellis was to have been a witness against the defendant Milton Howard, hereinafter referred to as Howard, on a federal complaint which charged Howard with selling narcotics to Ellis. Preliminary hearing on that complaint was set for December 28, 1959.
Donald Williams, who confessed to being an accomplice in the killing, testified for the State that Howard told him on December 24, 1959, that it was worth $1,000 for Edward Ellis not to testify. Another witness, Rudolph Williams, testified he had been at the home of the defendant, Howard, on December 24, 1959, and while there heard Howard tell the defendant, Jerry Erving, hereinafter referred to as Erving, that Ellis had to go and it was worth $1,000.
Donald Williams testified he saw Erving's car at the Howard home on Christmas Day, and a little later Erving came to him and asked where Ellis lived and if he could arrange to get Ellis to come out or if not if he could get Erving up inside the house. Donald Williams said he might the next day. Later that day, Howard came over to Donald Williams' home and indicated his knowledge of Erving's conversation with Williams.
Donald Williams further testified that he called Erving the next evening, December 26, 1959, sometime after 11 o'clock, and the two of them went to the Elliott-Ellis apartment. Donald Williams took along a 38-caliber revolver he had earlier acquired from Howard. During the ride over, Erving gave Donald Williams one of his brown gloves to wear. Donald Williams was admitted to the house by Dorothy Elliott but he could not persuade Ellis to leave the house so he left, but as he did so he fixed the lock on the front door so that it would not lock. Then he and Erving went back up the stairs to the Elliott-Ellis apartment, he picked a quarrel with Ellis, and pulled out his gun. Dorothy Elliott, who was sitting on the couch, grabbed his arm. The gun went off, and she slumped back on the couch. Donald Williams said he then ran out of the house but heard other shots behind him. He wasn't sure whether or not he shot Ellis.
Erving later picked Donald Williams up in his car and they drove to Carter Lake, about a mile away, where Donald Williams, at Erving's direction, threw both guns, his 38-caliber and a small caliber revolver given to him by Erving, into the lake. Williams also threw his brown glove out of the car window at Erving's direction.
When Erving left Donald Williams that night he told Williams he would be by the next day with some money for him. The next day Erving stopped at Donald Williams' home and gave him $150. Later that day Howard came to the Donald Williams' home with Rudolph Williams. Howard told Donald Williams he had paid Erving and gave him $250, saying that would make a total of $500, less the $100 Erving said that Williams owned to him.
After his arrest, Donald Williams took the police to Carter Lake where they found two brown gloves are where they later recovered a 38-caliber revolver and a 22-caliber revolver from the water at the spot where Donald Williams said he had thrown them. The guns were rusted and corroded, and both of them had spent shells in their chambers. The slugs found in the heads of the victims and in the sofa on which they were found were examined by experts. They appeared to have the same characteristics as the live bullets remaining in the guns; could have come from the spent shells in the guns; and could have been fired from guns having the same rifling characteristics as the guns found in the lake. The shells in the 22-caliber gun were of the same type as some 22-caliber shellsfound in the glove compartment of the Erving car.
Howard's defense was a complete denial of implication in the shooting and an alibi. He denied ever mentioning it was worth $1,000 to get rid of Ellis. He did admit to giving Williams $250, but claimed it was for an unmounted diamond Williams sold to him on Christmas Eve. A court reporter testified on rebuttal that on an earlier occasion Howard had said he gave Williams the $250 for the purpose of enabling Williams and Ellis to leave town and to hide out in Chicago.
Erving's defense was also a denial and an alibi. He claimed he and Howard were in Council Bluffs at the time Donald Williams claimed the killing took place. There was no question the defendants had been in Council Bluffs earlier that evening. There was, however, some inconsistency in the time involved, which, if believed by the jury, was consistent with Donald Williams' testimony.
While the defendants do not question the sufficiency of the evidence, they do seriously urge nine separate assignments of error involving trial procedures and the admission of evidence. These will be considered in the order of assignment.
Defendants first contend that the court erred in permitting a witness for the State to testify that he had purchased narcotics from the defendants. This refers to the testimony by State's witness, Donald Williams, who had confessed to complicity in the murders and had implicated the two defendants. On direct examination, he had testified to his use of narcotics. On cross-examination he was questioned at considerable length about the use of narcotics as well as about his knowledge that the two murder victims were addicts. He was specifically asked on cross-examination if he had ever used narcotics with Edward Ellis, one of the victims. On redirect examination he was asked: ...
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