Macomber v. State
| Decision Date | 12 April 1940 |
| Docket Number | 30473. |
| Citation | 291 N.W. 674,137 Neb. 882 |
| Parties | MACOMBER v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Penal statutes are inelastic and must be strictly construed and may not be extended by implication.
2. Strictly construing section 28-417, Comp.St.1929, a guide to the meaning of the statute is found in the evil which it is designed to remedy, and it is the duty of the court to review the contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body at the time of the enactment of the statute.
3. When a statute is required to be construed strictly, such statute should have a sensible construction. The general terms contained therein should be so limited in their construction as not to lead to injustice, oppression or an absurd consequence.
4. In a strict construction of a penal statute, it is presumed that the legislature intended exceptions to its language which would avoid results of injustice, oppression or an absurd consequence. The reason of the law in such case prevails over its letter.
5. Section 28-417, Comp.St.1929, is not all-inclusive, to cover several other offenses provided for by different sections of the Criminal Code, and warrants the strict construction that the legislature did not so intend such statute at the time of its enactment.
6. The evidence in the instant case, examined and considered in its entirety, fails to prove beyond a reasonable doubt the crime of kidnaping, within the meaning of the language used in and contemplated by section 28-417, Comp.St.1929.
7. Section 20-1207, Comp.St.1929, subjecting a witness to a physical examination, to be offered with reference to his physical or mental condition or the alleged cause thereof applies only to parties to an action.
8. " A conviction of a lesser offense than that for which the accused was informed against is not a bar to a prosecution for a greater offense if the accused is granted a new trial." Pembrook v. State, 119 Neb. 417 229 N.W. 271.
Error to District Court, Lincoln County; Nisley, Judge.
Clyde D. Macomber was convicted of assault and battery and of kidnaping, and he brings error.
Judgment reversed, and cause remanded, with directions.
Beeler, Crosby & Baskins, Robert B. Crosby, and Hoagland, Carr & Hoagland, all of North Platte, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and Milton C. Murphy, Sp. Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.
The defendant, Clyde D. Macomber, was charged in the district court for Lincoln county, with Albert A. Hastings and Joseph R. Baskins, with robbing Sam I. Pappas of $275 (this count was dismissed); with unlawful assault, with intent to inflict great bodily harm, on Sam I. Pappas, resulting in the conviction of defendant Macomber of assault and battery, for which he was sentenced to 60 days in jail; and in count one of the information with the crime of kidnaping. The language constituting this charge is substantially as follows:
Albert A. Hastings, Clyde D. Macomber and Joseph R. Baskins (late of Lincoln county), on or about November 21, 1937, did unlawfully and feloniously carry off, decoy, entice away, secrete and imprison Sam I. Pappas for the purpose of compelling Sam I. Pappas, forcibly and against his will, to confess and admit that he had committed the crime of sodomy. The maximum penalty for sodomy, under section 28-920, Comp.St. 1929, is 20 years in the penitentiary. Macomber was convicted of kidnaping, and, upon the overruling of the motion for a new trial, sentenced to serve the remainder of his natural life in the penitentiary. As plaintiff in error, he presents to this court for review the record of his conviction. The record contains 107 assignments of error and nearly 2,000 pages of other matter.
Plaintiff in error contends that the verdict of the jury, finding defendant Macomber guilty of kidnaping, is contrary to the evidence and the law. The record discloses:
On the evening of November 13, 1937, Glenn Hardenbrook, a boy 17 years of age, was caught in the act of committing the crime of sodomy with another young boy at the Union Pacific depot in North Platte. An arrest was made by police officers Westphal, Lindekugel and Macomber. The Hardenbrook boy was taken to the city police station and subsequently questioned with reference to becoming a moral pervert. It developed that he had first been taught by a man in Denver and later had such relations with one Sam Pappas, employed in a restaurant and known as " Coney Island" Sam Pappas. Hardenbrook remained in the city jail, and on Saturday evening, November 20, 1937, he talked to Albert A. Hastings, a defendant, who conducted an insurance and loan business in North Platte and who was active in city politics. His presence at the police station was accounted for in that he had been called by Officer Lindekugel on November 17, 1937, and learned about the case from such officer and from Amiel Traub, desk sergeant. The record discloses an offer to prove, as part of the defense, that one of the police officers had talked to the county attorney, and it was suggested by the latter that Hastings had become interested in procuring evidence in the case. It is shown in the record that a conversation was had between Hastings and the county attorney in the latter's office " about ways and means of clearing up this case, about the parties that had been getting this boy started, and I (the county attorney) mentioned the fact if Al Hastings heard about this he would probably like to work on the case, he had been trying to get the Greek for so long." The county attorney denied making any statement to Officer Traub about contacting Hastings to get him to assist. The substance of the county attorney's testimony, with respect to Hastings participating in the case, is: " Hastings had volunteered himself into the case, I could not very well, whether I wanted him in or not, tell him not to go ahead with the case."
On Saturday morning Hastings contacted Louis Kelly, a newspaper man, and asked him if he wanted a good story. Kelly and Hastings met the Hardenbrook boy in the office of the police judge Saturday night. Hastings introduced himself to the boy and told him he wanted to help the officers and other boys and informed him of the seriousness of the crime. He agreed to help the boy, but not in a finan cial way. Hardenbrook testified that Hastings told him he could get a parole and benefit financially. A trap was then set to catch Sam Pappas; Hastings, Kelly and Lindekugel to be witnesses. The Hardenbrook boy was to contact Sam Pappas and induce him to go to a rooming house and have relations with him. There they were to be caught in the commission of the crime. This scheme failed.
By way of explanation, there are two persons in North Platte, each connected in some manner with the restaurant business, by the name of Sam Pappas: Sam A. Pappas, known as " Coney Island" Sam Pappas, and Sam I. Pappas, the proprietor and owner of the Union cigar store and restaurant, who was also known as a local gambler, who had permitted card playing for money in his cigar store. The defendant Hastings, as well as the police officers and others, claimed to know only one Sam Pappas; that is, Sam I. Pappas. Hastings knew Sam A. Pappas as " Tom," and Sam A. Pappas testified that Hastings always referred to him as Tom. The fact that Tom Gladdis was employed with Sam A. Pappas might have led to the confusion in distinguishing the two men.
Defendant Macomber, 26 years of age, was employed by the city in the capacity of a regular patrolman. He worked four hours in the afternoon and four hours at night, until midnight. He was the driver of the cruiser car, answered red lights and patroled alleys and streets. He drove the cruiser at the time the Hardenbrook boy was apprehended, and testified that Hardenbrook told him at the police station that he had committed the crime of sodomy with one Sam Pappas, who operated a restaurant, and with his brother Gus. Sam I. Pappas also had a brother named Gus, who managed the Union restaurant, while he, Sam I., managed the Union cigar store. Macomber knew only one Pappas and that was Sam I. Pappas. Macomber saw Al Hastings at the police station on the night of November 19, 1937, and he claimed to have had a conversation on the street the morning of November 20 with the county attorney, who is purported to have told him to engage Sam Pap pas in conversation and to attempt to have him, Pappas, commit the crime of sodomy with him, Macomber; also to procure two witnesses. All of such testimony is in conflict and rebutted. Macomber testified that he saw Sam I. Pappas at about 8 o'clock in the evening of November 21, and induced him to ride with him in the police cruiser; that during the course of the ride Macomber suggested to Pappas that he, at some future date, indulge in sodomous relations with him, to which he claimed Pappas assented. Sam I. Pappas and witnesses for the state are far from being in accord on this testimony.
On the day in question Sam I. Pappas had dinner at the beet farm which he owned, a few miles distant from North Platte. Later in the day he went to the funeral of a friend in town and stopped at the Union cafe and had coffee, later returning to the farm. Mrs. Anna Simek, a sister-in-law of Sam I. Pappas with whom he lived, testified that early in the evening Macomber knocked on a window in her home, she went to the door, and Macomber asked to see Sam, and, when informed he was not at home, told her that when he returned to put a light on in the house and tell Sam that the boys wanted...
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