Harmer v. State
| Decision Date | 15 December 1937 |
| Docket Number | 30183. |
| Citation | 276 N.W. 378,133 Neb. 652 |
| Parties | HARMER v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A judgment in another case finding a fact now in issue is ordinarily not admissible.
2. Nonexpert witnesses with an intimate personal acquaintance who had an opportunity to observe the actions and demeanor of a person before, at, and after the time in question, may be permitted to testify as to his sanity or insanity after they have stated the facts supporting their conclusion.
3. An examination of the evidence discloses that plaintiff in error was not prejudiced by an alleged error.
Error to District Court, Cass County; Yeager, Judge.
Frank Harmer was convicted of breaking and entering, and he brings error.
Affirmed.
C. E Walsh, of Omaha, for plaintiff in error.
Richard C. Hunter, Atty. Gen., and Bert L. Overcash, Asst. Atty Gen., for the State.
Heard before GOSS, C. J., ROSE, DAY, PAINE, CARTER, and MESSMORE, JJ., and ELDRED, District Judge.
Harmer was convicted in the district court of the offense of breaking and entering, and was also found to be an habitual criminal. He appeals. The only defense was insanity, and the issues here relate to it.
In the night of April 25, 1936, Harmer was found by an awakened farmer in the farmer's garage at about 3:30 in the morning. Attracted by a light, the owner approached the building with a shotgun, and, when he heard a noise inside, shot the marauder though a hole in the garage. At the owner's command, Harmer, wounded and bleeding, crawled from the building through a hole. He was given medical attention, and removed to a distant hospital. When he recovered, he was returned by the sheriff to the county jail at Plattsmouth.
The garage was locked at the time, and an entry was made through a hole made by tearing some boards loose from the side. A car inside was " jacked up," and some nuts had been removed which held the whole wheel and tire. Harmer's car was a short distance down the road, and the tire would fit his car.
Harmer was charged with being an habitual criminal in that in February, 1931, he was convicted of hog stealing; and that in November, 1934, he pleaded guilty to the crime of chicken stealing. On the latter offense he was paroled in December, 1934, because the docket recited that he was mentally incompetent, and his relatives offered to see that he received immediate medical attention. His parole was revoked in June, 1935, for violation, in that he had, while paroled, stolen chickens.
This simple recital of the evidence relating to the habitual criminal charge is made as an answer to the passionate appeal of the defendant's attorney, to show that Harmer at large has proved to be a menace to society. It seems a fair inference that these convictions may not comprise all of his depredations. Harmer was apparently charged with a felony under section 28-538, Comp.St.1929. He was also charged with being an habitual criminal. The defense was insanity. The whole matter was properly submitted to the jury. Indeed, there is no complaint as to the instructions. The evidence is amply sufficient to sustain the verdict. It is not in conflict, with the possible exception of evidence of insanity, and the jury have resolved even that point against the plaintiff in error. The determination of this case depends upon the complaint that the trial court prejudicially excluded certain evidence relating to insanity. The court excluded the result of a hearing, including the proceedings, before the commissioners of insanity. This hearing was held after the commission of the complained act, and before the trial.
This is a criminal prosecution where the insanity at the time of the commission of the alleged offense was fully tried under a plea of not guilty. No reversible error could be predicated upon the refusal of the trial judge to admit in evidence the result, finding, and proceedings of the insanity...
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