Jahnke v. State

• Decision Date: 22 June 1905
• Citation: 104 N.W. 154,68 Neb. 154
• Parties: JAHNKE v. STATE.
• Court: Nebraska Supreme Court

68 Neb. 154

104 N.W. 154

JAHNKE

v.STATE.

Supreme Court of Nebraska.

June 22, 1905.

Syllabus by the Court.

If, upon trial of a charge of murder, evidence is introduced by the state tending to prove that the life of deceased was insured in favor of defendant, as showing a motive for the alleged crime, it is error to exclude evidence tending to show that the policy of insurance was of very little, if any, value, and that the defendant was aware of that fact.

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.

On motion for rehearing. Reversed.

For former opinion, see 94 N. W. 158.

Holcomb, C. J., dissenting.R. C. Noleman, B. F. Gilman, and Hamer & Hamer, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

SEDGWICK, J.

At the former hearing it was thought that the evidence of the witness Oleson was sufficient to require the issue as to the defendant's guilt to be submitted to the consideration of the jury, and that, the jury having found the defendant guilty, the verdict was so far supported by the evidence as to require this court to affirm the judgment. It was said that the record is quite voluminous, and that there were nearly 300 assignments of error in this court. No exhaustive analysis of the evidence was attempted. Upon the motion for rehearing, the court having re-examined the evidence with great care, there was doubt in the minds of the court as to the sufficiency of the evidence, and a rehearing was therefore ordered mainly upon that question. We have since this last argument again carefully reviewed the record, and are convinced that the evidence is not of such a character as to exclude all reasonable doubt of the defendant's guilt. The whole case against the defendant rests upon the evidence of the witness Oliver Oleson. It is claimed that there was evidence other than that of the witness Oleson which tended to show a motive on the part of this defendant to commit the crime, but it is not contended that any other witness has testified to any fact or circumstance tending to show his guilt. The special motive for the crime is found in the fact that there were two policies of insurance on the life of the deceased, amounting upon their face to $4,000. This insurance was payable to the defendant, August Jahnke, and there was evidence that the defendant had assisted in procuring the insurance, and had made some payments to the company thereon. This insurance, however, was in a local company that had been in existence but a few months. It was a mutual benefit association. Evidence was offered that there had been but one death in its membership since its organization, that upon his life there was a policy of $2,000, and that there was only $500 in the fund available for its settlement. It was also offered to prove that there was at the time of the death of the insured only about 300 members who could be assessed for the payment of the loss, and that but a very small amount could be realized upon a policy of $4,000, and that defendant was aware of these facts. This evidence was excluded by the court, and an exception was taken by the defendant. The evidence shows that there had been a long-time friendship between the deceased and the defendant, Jahnke, and there is no intimation in the record, outside of the evidence of the witness Oleson, that there had ever been any misunderstanding between them, or any reason to suppose that the defendant had any designs upon the life of the deceased. This evidence in regard to the value of the policy, together with the evidence that the defendant knew of the facts showing the worthlessness of the policy, ought to have been admitted; and, if we consider it as in evidence, the proof of the motive, under the circumstances, for the murder of a lifelong friend, is not very conclusive, and in itself furnishes, of course, no evidence of the defendant's guilt. It becomes, then, very important to carefully consider the evidence of the witness Oleson, upon whose sole testimony this conviction rests. He testified upon the trial that the defendant and himself had planned the death of the deceased for the purpose of obtaining the insurance upon his life. There were four separate attempts on their part to carry out this plan before it finally succeeded.

The witness and defendant both resided in the town of Alliance. The witness testified: That he had known Michael Sirck, the deceased, for 10 or 12 years, and that Sirck lived about 14 miles northwest of Alliance, in Box Butte county, Neb. That the witness and the defendant were at Sirck's residence about the 4th of March, 1902. The defendant, Jahnke, had a farm about two miles further from town than that of Mr. Sirck. The witness and defendant started from Alliance in the morning, and reached Mr. Sirck's place about 1 o'clock in the afternoon. They found Mr. Sirck at home. They went out there “to take a pump out of Jahnke's well.” They took dinner with Mr. Sirck, and then went up to Jahnke's place “to get out the pump and pipe out of Jahnke's well, and move it down to Mike Sirck's.” After they had taken out the pump and pipe, the witness says: “Well, there was a piece of pipe down in the well, and Jahnke, he said, ‘We will let Mike down there, and let him get that piece of pipe, and give it to him.’ ” The questions then asked and the answers given by the witness were as follows: “Q. Well, did you let Mike Sirck down in the well? A. We had a pulley, and we put the pulley up in the tower, and put a clevis up there, and let the rope on, and we put a board on one end of the rope, and started in, and let Mike Sirck down as far as the rope went, and when he got down to the end of the rope, as far as it would go, he said he was quite a ways from the water; and so we pulled him up again. Then we took a chain and put across from one post to the other, and put the pulley on the chain, and then fixed the rope again, and let him down with another small rope and hook, so he could fish around for the piece of pipe. Q. Well, after Mike got to the bottom of the well, what did you do? A. Well, when he was down there, Jahnke said, ‘Now let's hitch a team to the rope. * * *’ Q. Well, what did Jahnke say when Mike was in the bottom of the well? A. He said, ‘We will hitch a team onto the rope and pull Mike out, and, when he gets pretty near to the top, we will cut the rope and let him down in the well.’ Q. Did you hitch a team to the rope? A. Mr. Jahnke got his team and took them around there, and we pulled the rope up so far, so that we could get the clevis on (we had a clevis that was a square shape, like); and then he said, ‘You can drive the team, and, when we get so far we will cut the rope, and make it appear that the clevis cut the ropes.’ And I said: ‘No; you take the team. They are use to you.’ Q. What did you do further? A. Mr. Jahnke told me-- He said; ‘Yes; I will drive out. * * * I will drive out, and, when he gets pretty near to the top of the well, you make a motion, and I will cut the rope.’ And he had his knife in his hand when he started. Q. Did you draw Michael Sirck to the top of the well? Q. Tell the jury what you did with Michael Sirck? A. Mr. Jahnke started with the team, and his knife in his hand, and, when Mike got pretty near to the top of the well, I raised my hand, and Jahnke made one cut at the rope, but I didn't see how many times he cut, but he said he cut two or three times before the rope separated (he had one ply on one side of the clevis, and two on the other), and Mike Sirck went down to the bottom of the well. And the water rebounded again, and he remained on the curbing. There was a curbing sticking out about a foot and a half from the well. Q. Where did the defendant cut the rope? A. He cut it close to the clevis. Q. How close to the singletree that the horse was hitched to? A. Right close up to the clevis that was on the whippletree. Q. Now, had you had any talk with August Jahnke, prior to going out to Mike Sirck's, relative to letting him drop in the well? A. Yes, sir. Q. What was that talk? A. He said he had a great scheme on hand. Q. Tell, if you can, what he said the scheme was? A. He said he had the life of Mike Sirck insured, and a will made out in his favor. Q. What did he say, if anything, that he intended or proposed to do with Mike Sirck? A. He proposed to me, if I would assist him in killing Mike Sirck, he would give me half of the insurance policy, except to pay the doctor's bill and the funeral expenses.”

This well, according to the witness' testimony, was 110 or 115 feet in depth. He says he thinks that Sirck fell about 100 feet. Oleson called to Sirck immediately from the top of the well, and asked him if he was hurt, to which Sirck answered that he was not. He was then assisted from the well, and they all went to Sirck's house together. They remained there overnight. The deceased seems to have suffered no inconvenience from the fall. On the next day the defendant and Oleson planned the second attempt on the life of Mr. Sirck. Oleson's account of this attempt upon his direct examination is as follows: “Q. What did Jahnke say to you about killing Sirck that night? A. He said we had got to get rid of him some way, and ‘Mike Sirck has an old revolver here, and there is something wrong with it, and you are pretty handy fixing a revolver. I will get Mike to let you fix the revolver. Then I will have Mike get some cartridges, and you take the gun and make an accidental shot and kill Mike Sirck.’ * * * A. I put the cartridges in the gun as soon as Jahnke requested me, and Mike was staggering to one side of me, and I held the gun in my left hand in this position, and slipped the thumb over the hammer and pulled the hammer back, and let the...