Kitts v. State
| Decision Date | 14 October 1949 |
| Docket Number | 32599. |
| Citation | 39 N.W.2d 283,151 Neb. 679 |
| Parties | KITTS v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In laying a foundation in a criminal case for the admission of a confession in evidence, it is sufficient to establish affirmatively all that occurred immediately prior to and at the time of making the confession, provided such affirmative proof shows it to have been freely and voluntarily made and excludes the hypothesis of improper inducements or threats.
2. The question of whether or not in the first instance the State has laid a proper and sufficient foundation for the admission of such evidence is one of law for the court, and if the court determines as a matter of law that no sufficient foundation has been laid then the confession should be rejected, but where the confession is received in evidence its voluntary character is still a question of fact to be determined by the jury.
3. Where the trial court properly admits evidence of a confession challenged as involuntary by defendant's evidence it is prejudicial error to refuse to submit to the jury for its determination, under appropriate instructions, the factual question of whether defendant's alleged confession was voluntary, in which event it should be considered as any other evidence, or whether it was involuntary, in which event it should be wholly rejected and disregarded.
4. An instruction in a criminal case that 'yet you have no right to reject the testimony of any of the witnesses without good reason, and should not do so unless you find it irreconcilable with the other testimony which you find to be true,' is erroneous and ordinarily prejudicial.
Bernard J. Boyle, Omaha, Hugh J. Boyle, Omaha, for plaintiff in error.
James H. Anderson, Atty. Gen., William T. Glesson, Asst. Atty Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The first and second counts of an information filed in the district court for Douglas County respectively charged defendant with burglary and possession of certain described instruments or tools with intent to commit a burglary. A third count therein charged that defendant was an habitual criminal. At arraignment, defendant stood mute upon advice of his counsel, and the trial court entered a plea of not guilty. Trial to a jury was had upon the first and second counts respectively, whereat defendant was found guilty as charged. Defendant's motion for new trial was overruled, and thereafter hearing was had by the court upon count three, as provided in sections 29-2221 and 29-2222, R.S.Supp., 1947, and in conformity with Haffke v. State, 149 Neb. 83, 30 N.W.2d 462. At the conclusion of such hearing it was found and adjudged that defendant was an habitual criminal as charged, and, in the light thereof, upon the verdict of guilty he was sentenced to serve 12 years in the Nebraska State Penitentiary.
Defendant appealed to this court, and his brief assigned as error substantially: (1) That the verdict was contrary to law and not sustained by the evidence; (2) that the trial court erred in admitting evidence of the State relating to alleged confessions made by defendant; (3) erred in holding, as a matter of law, that such confessions were voluntary, and refusing to submit that question to the jury as one of fact for its determination, as requested by proffered instructions and otherwise throughout the trial; and (4) that the trial court erred in giving instruction No. 19 relating to credibility. We sustain the third and fourth assignments.
Evidence in the record discloses that the State adduced competent evidence from which as jury could have reasonably concluded as follows:
On December 22, 1947, at or about 1:20 a. m., after the barroom in the South Omaha Eagles Lodge building had been searched, closed, and locked, a burglar alarm installed therein sounded at American District Telegraph headquarters. Police were called, who drove to the building, where outside thereof they exchanged shots with an unidentified man who fled from the scene and escaped in the darkness down an alley between buildings. A window on the east wall of the semibasement was found to have been opened, at the foot of which were two crowbars. Polic entered the building, and in the semibasement defendant was found, armed with a loaded pistol, hiding behind tables stacked near the south wall. A cap was found near the open window, as was also a kit containing two pair of gloves and certain tools, the like of which are ordinarily used for the purpose of breaking and entering. The cap, gloves, pistol, shells removed therefrom, and kit of tools were respectively identified, offered, and received in evidence, but apparently were never actually delivered to this court with the bill of exceptions.
At command of an officer defendant stepped out, hands raised. The pistol was seen by such officer projecting from defendant's pocket, and as defendant reached for it, the officer struck him on the head with a revolver, thereby producing an injury or laceration of some proportions from which blood flowed down over his face and clothing. The loaded pistol in defendant's possession was taken from him, and he was placed under arrest. Thereafter police officers placed defendant face down on a pool table in spread-eagle fashion, and he was searched. Blood flowed from his head wound down on the table, and in a few moments he was removed therefrom and laid in the same manner on the floor. While in those positions, defendant was plied with questions by the officers, and voluntarily, without the use of any force, threats, or fear, gave answers, confessing that he broke into the premises through the window heretofore described, identified the person by name who fled from the scene as his accomplice, identified the cap found as that of his accomplice, admitted that the kit of tools was his own, which he had brought to the building, and admitted ownership of the pistol, telling where he had purchased it sometime previously.
On the other hand, defendant adduced competent evidence generally conflicting, contradictory, and irreconcilable with that adduced by the State. We do not deem it necessary to recite such evidence at length, except to say that defendant testified that while he was on the pool table and floor the officers beat him about the head and face with a blunt instrument and with their fists, removed him to the floor because...
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