Garcia v. State

• Decision Date: 14 January 1955
• Docket Number: No. 33612,33612
• Citation: 68 N.W.2d 151,159 Neb. 571
• Parties: Benito GARCIA, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 151

68 N.W.2d 151

159 Neb. 571

Benito GARCIA, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 33612.

Supreme Court of Nebraska.

Jan. 14, 1955.

Syllabus by the Court

1. Homicide committed in the perpetration of a robbery is murder in the first degree, and in such a case the turpitude of the act supplies the element of deliberate and premeditated malice.

2. Whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender. Section 28-201, R.R.S.1943.

3. Where 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 matters 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 scope of the cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld, unless an abuse of that discretion is shown.

5. The testimony of a witness as to a statement made by another person is hearsay when he understood it, not as originally given, but as translated by an interpreter not then under oath.

6. It is proper to admit evidence in respect to the conduct of an accused person while in jail awaiting trial.

7. If a killing is committed within the res gestae of the felony charged it is committed in the perpetration of, or attempt to perpetrate, the felony, within the meaning of the statute.

8. The term 'res gestae' means things done in and about, and as a part of, the transaction out of which the litigation in hand grew and on which transaction said litigation is based.

9. A conviction may rest on the uncorroborated evidence of an accomplice when, considered with all the testimony and circumstances, it satisfies the jury beyond a reasonable doubt of the guilt of the accused.

10. The evidence of an accomplice should be closely scrutinized. If it appears that such witness has willfully sworn falsely in regard to a material matter upon the trial, his evidence cannot be sufficient, if uncorroborated, to support a verdict of guilty.

11. The credibility of the witnesses and the weight of their testimony is for the jury to decide.

12. An information charging defendant with a homicide committed in the perpetration of or attempt to perpetrate a robbery under section 28-401, R.R.S.1943, charges only murder in the first degree, and it is error for the trial court to instruct the jury that thereunder they may find defendant guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter.

13. The mere fact that a witness in a criminal prosecution is a regular public law enforcement officer does not entitle an accused to an instruction that the jury, in weighing his testimony, should exercise greater care than in weighing the testimony of other witnesses.

14. Where informers, detectives, or other persons employed to hunt up testimony against the accused are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly disinterested.

15. Trial judges and public prosecutors are charged with the duty of conducting criminal trials in such a manner that the accused may have a fair and impartial trial, uninfluenced by prejudice, passion, and public clamor.

16. Prosecutors are not partisans against the accused, and should handle all prosecutions without bias or prejudice as between the public and the defendant.

17. It is the duty of the prosecuting attorney to conduct the trial in such a manner as will be fair and impartial to the rights of the accused, no matter how guilty, in his opinion, defendant may be; and this rule applies to special counsel assisting the prosecuting attorney.

18. One who, by reason of insanity or imbecility, is unable to comprehend the obligation of an oath, or to understand and intelligently answer the questions put by the court upon a voir dire examination, is, under the provisions of section 25-1201, R.R.S.1943, incompetent to testify as a witness.

19. The question of competency of a person to be a witness must be left to the sound legal discretion of the trial judge, leaving to the jury to determine the credit that ought to be given to the testimony.

Charles A. Fisher, Chadron, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Robert A. Nelson, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an error proceeding from the district court for Sioux County. A jury therein found Benito Garcia, petitioner in error and defendant below, guilty of murder in the first degree and fixed the penalty at life imprisonment in the penitentiary. The trial court imposed sentence accordingly and, from the overruling of his motion for a new trial, defendant brought this proceeding. We shall herein refer to Garcia as defendant.

The information filed by the State charged that on July 18, 1953, defendant committed murder in the first degree by killing Edwardo Zamora while in the act of robbing him. The charge was made under and pursuant to the provisions of section 28-401, R.R.S.1943.

Defendant contends the evidence produced was not sufficient to prove his guilt beyond a reasonable doubt. We think, from the evidence adduced, the jury could find, beyond any reasonable doubt, that during the afternoon of July 18, 1953, the deceased, defendant, and one Salvador Martinez Gutierez left Morrill, Nebraska, in the deceased's car; that they drove to an irrigation ditch in Sioux County for the purpose of taking a bath in the waters of the ditch; that while pretending to prepare to take his bath the defendant seized the deceased; that while the deceased was being held by defendant, Gutierez robbed him of his wallet, or pocketbook, and his automobile keys; that after robbing him defendant beat the deceased about the head, first with a board and later with a length of two-by-four; that such beatings caused severe contusions or bruises about the head, a fracture of the skull at its base, and injury to the brain; that such beatings resulted in the deceased becoming unconscious; that the deceased, while in this unconscious condition, was thrown into the waters of the irrigation ditch; and that because of his unconscious condition he drowned.

As stated in Pumphrey v. State, 84 Neb. 636, 122 N.W. 19, 23 L.R.A., N.S., 1023: 'Homicide committed in the perpetration of a robbery is murder in the first degree, and in such a case the turpitude of the act supplies the element of deliberate and premeditated malice.'

Both defendant and Gutierez admitted the robbery but each accuses the other of actually doing the acts which resulted in Zamora's death. But this gives neither any relief for each is, under such circumstances, responsible for the acts of the other. Section 28-201, R.R.S.1943, provides: 'Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.'

Besides questioning the sufficiency of the evidence adduced, which contention we find to be without merit, defendant contends many errors occurred during the course of the trial which were prejudicial to his rights and prevented him from having a fair trial.

Defendant contends that the trial court erred in the admission of certain evidence after proper objections thereto had been made. The first of these relates to certain questions asked of and answered by defendant relating to when he had been in jail in Laredo, Texas. On redirect, in reference to a statement he had given while in jail and which was in evidence, defendant's counsel asked him, 'Now, when you were in jail there all the time, the very fact that you were in jail made you afraid, did it not?' He replied, 'Yes, sir.' Thereafter, on recross, defendant was asked, 'Well, you have been in jail, off and on, in Laredo, Texas since you were 17 up to 1951 at least nine times?' He replied, 'The last time I was in jail was about three years ago.' He then was asked the following questions: 'Q. So you are not afraid of jails, are you? A. Yes, sir; I am afraid of them. Q. Do you mean to say that being in jail makes you afraid? * * * A. No, sir; * * *.'

There had also been a question raised as to defendant's age. He testified he was 29 at the time whereas in his statement taken on August 5, 1953, he stated he was 27. This was apparently done for the purpose of affecting the credibility of Julian W. Lopez, who acted as interpreter in taking defendant's statement, and to thereby discredit his signed confession. Defendant did not understand or speak the English language with any degree of fluency and an interpreter was necessary to converse with him. In that respect the following questions were asked on cross-examination of defendant and he replied thereto as herein set forth: 'Q. All right. Now, I am going to ask you again if you had a conversation with the Chief of Detective in Laredo, Texas on March 5, 1951, and if at that time you did not tell him that you were 25 years of age? * * * A. I don't remember because that is about three years ago. Q. All right. Did you have a conversation with the Chief of Police of Laredo on June 20, 1943 at his office in which you talked about your age? * * * A. I don't remember. * * * Q. I will ask you if on that date, June 20, 1943, you told the Chief of Police of Laredo, Texas, in his office that you were 17 years of age. * * * A. I don't remember.' There were other questions of a like character.

Section 25-1214, R.R.S.1943, provides: 'A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record...