Kitts v. State, 32860

• Decision Date: 13 February 1951
• Docket Number: No. 32860,32860
• Citation: 46 N.W.2d 158,153 Neb. 784
• Parties: KITTS v. STATE.
• Court: Nebraska Supreme Court

Page 158

46 N.W.2d 158

153 Neb. 784

KITTS v. STATE.

No. 32860.

Supreme Court of Nebraska.

Feb. 13, 1951.

Syllabus by the Court.

1. The material elements of the crime of breaking and entering with felonious intent, as defined by section 28-532, R.R.S. 1943, may be proved by direct or circumstantial evidence.

2. Likewise, the material elements of the crime of possession, custody, or control

of instruments or tools, with intent feloniously to break and enter, as defined by section 28-534, R.R.S. 1943, may be proved by direct or circumstantial evidence.

3. The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect accused with the crime charged are of such conclusive nature as to exclude every reasonable hypothesis except that of his guilt.

4. It is the province of the jury to determine the circumstances surrounding and which shed light upon the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they cannot be accounted for upon any rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed.

5. The unsupported testimony of the accused in a criminal case, which the jury does not believe, cannot be said to furnish a hypothesis consistent with the innocence of the accused.

6. The court in a criminal action will not interfere with a verdict of guilty based upon conflicting 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.

7. If the voir dire examination of a juror, considered as a whole, does not show incompetency, a challenge upon that ground is properly overruled, although during the examination statements are made which, if unexplained, might be ground for challenge.

8. The qualifications of a juror, when challenged for cause, are to be determined by the trial court from a consideration of his entire examination and such other evidence and circumstances as tend to throw light upon the subject. The appearance and general demeanor of the juror while being examined may be taken into consideration in determining his competency to serve.

9. The finding of the trial court in deciding a challenge for cause, will not be set aside by the appellate court, unless it is clearly wrong.

10. An opinion formed by a juror does not ordinarily affect his competency, or afford cause for challenge, unless it is unqualified as to the guilt or innocence of the accused as to the offense charged.

11. Where a deceased witness testified upon a former trial of the same party for the same offense, being brought face to face with the accused and cross-examined by him, it is competent, upon a subsequent trial, to prove the testimony of such deceased witness, and such proof does not violate the provisions of the Constitution of the state which gives to the accused the right to meet the witnesses against him face to face.

12. In that connection, when the State offers the testimony of such a deceased witness, it is analogous to the situation presented if the witness were living and had been offered to testify for the State.

13. In other words, counsel for the State may in such a case offer and read such testimony as he desires, to which no objection is made or which is competent, relevant, and material, under the issues presented, and is not required to offer or read all of the testimony.

14. On the other hand, counsel for defendant may offer and read, if he so desires, not only the cross-examination but also any omitted portions of the direct evidence, as evidence introduced by him who first offered it. Both situations are, however, subject to the test of competency, relevancy, and materiality.

15. The publication of newspaper articles prior to the trial is not ground for a continuance where defendant has been given ample opportunity to determine on voir dire examination whether any of the prospective jurors have formed or expressed an opinion as to the guilt or innocence of the defendant, as a result of having read such articles.

16. Where the jury has been clearly admonished not to read newspaper accounts of the trial, the granting or denying of defendant's request that the jurors be interrogated during the trial as to whether they have read newspaper accounts rests in the sound discretion of the trial court.

17. When a jury has been clearly admonished not to do a certain act, the mere opportunity to violate that admonition without any proof of its violation provides no basis on which this court can find that the trial court has abused its discretion in refusing to investigate the jury for such possible misconduct.

Bernard J. Boyle, Hugh J. Boyle, Omaha, for plaintiff in error.

C. S. Beck, Atty. Gen., William T. Gleeson, Asst. Atty. Gen., for defendant in error.

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

CHAPPELL, Justice.

In a three-count information, defendant was respectively charged with: (1) Breaking and entering; (2) unlawful possession of instruments or tools with intent feloniously to break and enter; and (3) that he was an habitual criminal.

After a plea of not guilty he was tried to a jury upon the first two counts and found guilty upon each as charged. His motion for new trial was overruled, and a hearing was had by the court upon count three, in conformity with sections 29-2221 and 29-2222, R.R.S. 1943. In view of the record and undisputed fact that defendant had been convicted of felonies upon four previous occasions, two of which were for breaking and entering, the trial court sentenced him to serve 12 years in the Nebraska State Penitentiary under count one, and for a like period under count two, such sentences to run concurrently and not consecutively.

Therefrom defendant prosecuted error to this court: (1) Challenging sufficiency of the evidence to sustain his conviction upon either count one or two; (2) contending that the trial court erred prejudicially in overruling his challenge for cause of a juror required to serve because defendant's peremptory challenges had all been exhausted; (3) erred prejudicially in overruling defendant's objection to the reading of only a portion of the testimony given by a witness at a former trial of the same case, who was since deceased; and (4) that the publication of alleged false and prejudicial newspaper articles prior to and during the trial prevented defendant from having a fair trial. We conclude that defendant's contentions have no merit.

Upon the conclusion of the State's case-in-chief, and again at conclusion of all the evidence, defendant moved to instruct the jury to return a verdict of not guilty, or in the alternative to discharge the jury and exonerate defendant upon both counts, because the evidence as a matter of law was insufficient to sustain the material allegations of the information. Such motions were properly overruled by the trial court.

The sufficiency of the evidence must be determined in the light of well-established rules of law. In that regard, the material elements of the crime of breaking and entering with felonious intent, as defined by section 25-532, R.R.S. 1943, may be proved by direct or circumstantial evidence. Young v. State, 133 Neb. 644, 276 N.W. 387; Ayres v. State, 138 Neb. 604, 294 N.W. 392.

Likewise, the material elements of the crime of possession, custody, or control of instruments or tools with intent feloniously to break and enter, as defined by section 28-534, R.R.S. 1943, may be proved by direct or circumstantial evidence. O'Neill v. State, 105 Neb. 824, 182 N.W. 503; State v. Furlong, 216 Iowa 428, 249 N.W. 132.

Concededly, as held in Morgan v. State, 51 Neb. 672, 71 N.W. 788: 'The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution, is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of his guilt.

'It is the province of the jury to determine the circumstances surrounding and which shed light upon, the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed. Casey v. State, 20 Neb. 138, 29 N.W. 264.' See, also, Maher v. State, 144 Neb. 463, 13 N.W.2d 641; Id., 323 U.S. 757, 65 S.Ct. 91, 89 L.Ed. 606.

It should be borne in mind, however, that: 'The unsupported testimony of the accused in a criminal case, which the jury do not believe, cannot be said to furnish an hypothesis consistent with the innocence of the accused.' Binfield v. State, 15 Neb. 484, 19 N.W. 607. See, also, Carleton v. State, 43 Neb. 373, 61 N.W. 699.

Referring to other cited cases, it is stated in Watson v. State, 141 Neb. 23, 2 N.W.2d 589, 591: 'They do not, however, change the rule, long followed and stated by this court in Vinciquerra v. State, 127 Neb. 541, 256 N.W. 78, 80, as follows: 'To justify conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and, when taken together or as a whole, must be of such a character as to be consistent with each other, and with the hypothesis sought to be established thereby, and inconsistent with any reasonable hypothesis of innocence.'

"Where in a criminal case the evidence is circumstantial, the circumstances established, must, to warrant a conviction, be such as to exclude every reasonable hypothesis except that of the defendant's guilt. But this rule merely requires the exclusion of such hypotheses as are...