Lipscomb v. State, 33887

• Decision Date: 13 April 1956
• Docket Number: No. 33887,33887
• Citation: 162 Neb. 417,76 N.W.2d 399
• Parties: Ennis LIPSCOMB, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 399

76 N.W.2d 399

162 Neb. 417

Ennis LIPSCOMB, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 33887.

Supreme Court of Nebraska.

April 13, 1956.

Syllabus by the Court.

1. One of the purposes of the voir dire examination is to disclose whether or not a prospective juror knows one or more of the parties, or knows something about the case.

2. Where the accused is identified as having been at or near the scene of a crime about the time of its commission, evidence showing that he owned, possessed, or had access to any tools with which the crime was or might have been committed is admissible to show that the accused had the means to commit the offense in the manner that it was committed. It is a circumstance which the jury may consider.

3. A defendant in a criminal case who becomes a witness subjects himself to the rules applicable to other witnesses.

4. The statute (section 25-1214, R.R.S.1943) prescribes and limits the scope of any inquiry initiated by the State that may be made on cross-examination of a defendant in a criminal case. It permits inquiry of the defendant when he is a witness if he was previously convicted of a felony. If the answer is in the affirmative, he may be asked the number of such convictions, and if an answer is correctly given, the inquiry must end there. If any answer of the defendant in this regard is incorrect or if he claims he does not remember, the fact of his conviction or convictions may only be shown by 'the record thereof.'

5. In a criminal prosecution, any testimony, otherwise competent, which tends to dispute the testimony offered on behalf of the accused as to a material fact, is proper rebuttal testimony.

6. The statute (section 25-1214, R.R.S.1943) does not permit exploration of the charge or charges of which the defendant was previously convicted, the details thereof, or the sentence imposed.

7. Remarks in his argument by the county attorney brought about and made in answer to the arguments of prisoner's counsel, unless necessarily prejudicial to the accused, do not necessitate the reversal of a conviction.

Ralph R. Bremers, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

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

SIMMONS, Chief Justice.

In this action the plaintiff in error, hereinafter called the defendant, was charged with the crime of robbery. The crime charged involved the elements of force, violence, or fear. He pleaded not guilty. Trial was had resulting in a verdict of guilty. Motion for new trial was made and overruled. Defendant was sentenced to serve a term in the penitentiary. Defendant brings the cause here by petition in error.

We affirm the judgment of the trial court.

We determine the argued assignments of error.

The bill of exceptions shows that during the voir dire examination the county attorney disclosed that he had spoken with a prospective juror who had disclosed to the attorney that his wife had sat on a jury in a case wherein this defendant was a defendant. The statement is shown to have been made in the presence of other prospective jurors. Defendant claims prejudice.

The voir dire examination is not shown. The transcript shows that the prospective juror did not sit as a juror in the case.

Obviously one of the purposes of the voir dire examination is to disclose whether or not a prospective juror knows one or more of the parties, or knows something about the case. Those are preliminary questions asked time after time whenever juries are being selected. We see no merit in the assignment.

The evidence is that shortly before the robbery two men came near the scene of the robbery in a maroon-colored car, parked the car, and then walked toward the filling station where the robbery occurred. In a few minutes they returned. One got into the car and drove away. The other ran in the direction taken by the car. Within a few minutes the defendant and another man were arrested while in the car a few blocks from the scene of the robbery. These two men were identified as the men who entered the filling station, held the arms of the complaining witness, took a purse and billfold from his person, and then ran away.

The defendant, when arrested, was in the right front seat of the car. Under the front seat was found a piece of gas pipe, three-fourths of an inch in diameter and about 2 feet in length. One end was taped so as to make a handle. The other end had an elbow connection attached. It was not shown to have been used in the perpetration of the robbery.

Defendant claims its admission to have been prejudicial error.

We have recently stated the applicable rule as follows: 'Where the accused is identified as having been at or near the scene of a crime about the time of its commission, evidence showing that he owned, possessed, or had access to any tools with which the crime was or might have been committed is admissible to show that the accused had the means to commit the offense in the manner that it was committed. It is a circumstance which the jury may consider.' Liakas v. State, 161 Neb. 130, 72 N.W.2d 677, 678.

The assignment is without merit.

Defendant testified in his own behalf. On cross-examination he was asked. how many times he had been convicted of a felony. He answered 'Twice.'

On rebuttal the State offered certified copies of the records of a court in Dallas, Texas, showing that one Ennis Lipscomb in four different cases had on January 20, 1937, pleaded guilty to the offense of robbery and had in each case been sentenced to serve 15 years. The State then offered a witness identifying the defendant here as the defendant in the Texas cases. The State at the same time offered the record of a prior Nebraska conviction of a felony. The offer was to prove five prior convictions of a felony.

'The statute, § 25-1214, R.S.1943, provides that: 'A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof.' A defendant in a criminal case who becomes a witness subjects himself to the rules applicable to other witnesses. * * * The statute prescribes and limits the scope of any inquiry initiated by the State that may be made on cross-examination of a defendant in a criminal case. It permits inquiry of the defendant when he is a witness if he was previously convicted of a felony. If the answer is in the affirmative, he may be asked the number of such convictions, and if an answer is correctly given, the inquiry must end there. If any answer of the defendant in this regard is incorrect or if he claims he does not remember, the fact of his conviction or convictions may only be shown by 'the record thereof." Latham v. State, 152 Neb. 113, 40 N.W.2d 522, 524.

The State here undertook to show that the answer as to the two previous convictions was incorrect.

The offer of the record of the previous convictions was a proper procedure. Defendant contends that they should have been offered in cross-examination and that it was error to receive them in rebuttal. The rule it: 'In a criminal prosecution, any testimony otherwise competent, which tends to dispute the testimony offered on behalf of the accused as to a material fact, is proper rebuttal testimony.' Drewes v. State, 156 Neb. 319, 56 N.W.2d 113, 114.

Defendant then offered to...