Grandsinger v. State, 33663

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS; CHAPPELL
• Citation: 73 N.W.2d 632,161 Neb. 419
• Parties: Loyd Carroll GRANDSINGER, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Docket Number: No. 33663,33663
• Decision Date: 16 December 1955

Page 632

73 N.W.2d 632

161 Neb. 419

Loyd Carroll GRANDSINGER, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 33663.

Supreme Court of Nebraska.

Dec. 16, 1955.

Syllabus by the Court.

1. In criminal prosecutions it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence, all of which are matters for the jury.

2. In a criminal case this court will not interfere with a verdict of guilty based upon the 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.

3. As a general rule, evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution.

4. However, there are exceptions to such rule where a defendant is charged with a crime involving the essential elements of motive, intent, or guilty knowledge, and such evidence is admissible in such cases if it falls within one or more of such recognized exceptions.

5. A statute requiring that instructions be in writing is not to be so construed as to require the court to reduce to writing all the admonitions which it may be proper to give the jury while the trial is in progress.

6. Subject to general rules, the trial court may orally give its opinion on a motion to exclude testimony; in ruling on the admissibility of evidence, may explain its rulings; and state for what purpose evidence is admitted, limit its application, or direct the jury to disregard it.

7. 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.

8. 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 judge and, unless abused, its exercise is not reversible error.

9. A defendant in a criminal action may not predicate error on an instruction that is more favorable to him than is required by the law applicable to the charge made.

10. All instructions given should be considered in determining whether a particular instruction is prejudicial, and where instructions considered as a whole state the law fully and correctly, error may not be predicated thereon merely because a separate instruction, considered by itself, might be subject to criticism or is incomplete.

11. It is not error to refuse instructions requested by defendant where the court on its own motion has given the substance of such requests. The trial court is not required to instruct in the exact language of a requested instruction. If the point is covered by an instruction couched in proper terms, it meets all the requirements of the law.

12. Section 28-401, R.R.S.1943, does not prescribe or authorize the court to prescribe any rule defining or circumscribing the exercise of the right of a jury in its discretion to determine in a homicide case whether upon finding an accused guilty of murder in the first degree the penalty shall be death or imprisonment for life. The statute commits the whole matter to the judgment or conscience of the jury and the doctrine of reasonable doubt has no application in the jury's determination of the penalty to be imposed.

13. The mere fact that a witness in a criminal prosecution is a regular 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. The rule that where informers, detectives, or other persons employed to produce evidence against the accused are called to testify against him, the defendant is entitled to an instruction to the jury that in weighing the testimony of such witnesses greater care and closer scrutiny should be exercised than in considering the testimony of witnesses who are disinterested, is generally not applicable to public law enforcement officers who are witnesses.

15. In a homicide prosecution it is not proper to give an instruction as to assault in any of its grades unless such instruction is applicable and authorized by the evidence.

16. Pardon or parole relates to something that may happen after conviction by action of the executive department. The jury in a homicide case has nothing to do upon a finding of guilt of murder in the first degree except to determine whether the penalty should be death or imprisonment for life, and in event the decision is for life imprisonment, whether or not a defendant should be later pardoned or paroled is not a matter of concern for the jury. Its task is to choose between one or the other of the penalties and its decision should not rest upon whether pardon or parole is easy or difficult to secure.

17. In a homicide case, a prosecutor has a right to urge the jury to fix the penalty at death if the accused is found guilty of murder in the first degree, and the scope of his argument in that regard should be given a broad latitude provided it is predicated upon the evidence or reasonable inferences therefrom.

18. However, it is improper and error in such cases for the prosecutor to make any statements in his closing argument with regard to pardon or parole, although it is not prejudicial error to make remarks which are simply a statement of existing constitutional or statutory law, which all men, including the jurors, are presumed to know and doubtless do already know before the statement is made, if the statement is unaccompanied by other related objectionable or prejudicial remarks.

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, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff in error, Loyd Carroll Grandsinger, hereinafter called defendant, was charged with murder in the first degree by shooting and killing one Marvin Hansen, a Nebraska safety patrolman, on April 8, 1954, in Cherry County, Nebraska. Defendant pleaded not guilty, and after trial to a jury in the district court it returned a verdict which found defendant guilty of murder in the first degree and fixed the penalty at death. Defendant's motion for new trial was overruled, whereupon judgment and sentence in conformity with the verdict were rendered. Therefrom defendant prosecuted error to this court. Errors assigned and discussed are substantially as follows: (1) That the evidence was insufficient to support the verdict and judgment or justify the death penalty; (2) that the trial court erred in the admission of certain evidence; (3) that the prosecutor in argument was guilty of misconduct prejudicial to defendant's rights; (4) that the trial court erred in giving and refusing certain instructions; and (5) that in the event of affirmance, the verdict and judgment should be modified to reduce the sentence under the provisions of section 29-2308, R.R.S.1943. We conclude that the assignments should not be sustained.

There is competent evidence in the voluminous record from which the jury could have concluded beyond a reasonable doubt as follows: At the time of the alleged commission of the crime in Cherry County, Nebraska, about 11:30 p. m., April 8, 1954, defendant was 21 years of age, with the equivalent of a tenth-grade education. He was born at Valentine, Nebraska, but had been living at Bell Gardens, California, a suburb of Los Angeles, where he had been employed as a receiving clerk. He was married and had one child about 14 months old at time of trial. However, about a month previous to April 3, 1954, he had separated from his family because of marital difficulties. On April 3, 1954, out of employment and with little cash, defendant left California in his own 1941 Ford car and started east. Defendant's brother Leon, 32 years old, left with him. Prior to leaving, defendant took a gun, a .22 cylinder pistol, from a trailer house belonging to a friend. Defendant's car was not in good condition, and at various points along the route they worked upon it. Also along the route they prowled and pilfered several cars from which articles were stolen. Eventually defendant's car would barely run, so at some point in Wyoming they stole a 1952 or 1953 Ford car, behind which they towed defendant's car the rest of the way while one of them guided it, because to leave it would be a dead giveaway. They started the stolen car by direct wire from battery to coil. In that regard, defendant said, 'there wasn't a car he couldn't get into in two minutes.' A second .22 cylinder gun, almost identical with that taken by defendant, was also stolen by them either from one of the prowled cars or from the stolen car, so that each one of them had a loaded gun, which carried nine .22 long rifle cartridges, in his possession, with extra such cartridges to use in them, and they engaged in target practice.

After stealing the car and numerous other items including the guns, they drove on to Valentine, Nebraska, thence to a point south and east of Springview where they stopped at a hay lot and worked on defendant's car. From there they drove to a point southeast of Wewela, South Dakota, and parked defendant's car about 100 yards off the highway along a creek. Thence they drove to a farm where defendant stole a tire and they stole 25 or 30 gallons of gasoline, some of which...