Masourides v. State

• Decision Date: 26 February 1910
• Docket Number: 16,425
• Citation: 125 N.W. 132,86 Neb. 105
• Parties: JOHN MASOURIDES v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

125 N.W. 132

86 Neb. 105

JOHN MASOURIDES v. STATE OF NEBRASKA

No. 16,425

Supreme Court of Nebraska

February 26, 1910

ERROR to the district court for Douglas county: ABRAHAM L. SUTTON JUDGE. Reversed.

REVERSED.

Sullivan & Rait and J. M. Macfarland, for plaintiff in error.

W. T Thompson, Attorney General, and George W. Ayres, contra.

OPINION

REESE, C. J.

An information was filed in the district court charging plaintiff in error with the crime of murder in the first degree in the killing of Edward Lowry, a police officer of the city of South Omaha, on the 19th day of February, 1909. A trial was had, beginning on the 24th day of May of the same year, which resulted in a verdict finding the accused guilty of murder in the first degree, and fixing the penalty at death. A motion for a new trial was filed and overruled, and sentence of death was pronounced against him. He brings the case to this court by proceedings in error. A number of alleged errors are presented, but, as another trial must be had in which the same causes for complaint will probably not arise, they, with the exception of the one error hereinafter discussed, will not be noticed. It was contended upon the trial, and is here insisted upon, that the evidence submitted to the jury is not sufficient to sustain the verdict, but it is not deemed necessary, or even proper, that we express any opinion upon that subject.

As leading up to the question to be considered, certain conceded facts may, with propriety, be stated. Plaintiff in error is of foreign birth and nationality, having at the time of the tragedy been in this country but about two years, and was wholly unacquainted with the English language, not being able to either speak or understand any part of the speech of this country. A countryman and friend of his had what is spoken of as a candy kitchen in South Omaha, which was frequently visited by plaintiff in error. The wife of his friend was not of his nationality and could not speak his language. He expressed a desire to learn to speak English, and sought the aid of some one who could teach him. He was referred to a girl, or young lady, by the name of Lillian Breese, of the age of about 17 years, who was working in the candy kitchen, and through the aid of an interpreter it was arranged that she, for a compensation named, should give him, and perhaps others, lessons in the language. Miss Breese, whose reputation appears to have been good, was living in a room in one of the nearby flats with her little brother of between six and seven years of age, and it was arranged that the lessons should be given at her room. At the time to which we refer she had given him two lessons. On the evening of the 19th day of February, 1909, after the completion of her labors at the candy kitchen, she with her little brother were starting for her room when plaintiff proposed accompanying her, which he did, and the three went to her home. Soon after their arrival the deceased called at the house, and inquired of the landlady if the girl and little boy were in their room. On being informed that they were, he expressed a desire to enter, and was shown to the room. The landlady knocked on the door and Miss Breese opened it. The deceased entered at once, and directed Miss Breese and plaintiff in error to accompany him to the police station. They started with him, leaving the little boy with the landlady. On the way to the station the tragedy occurred, by which the officer was shot and killed, and plaintiff in error received two gun-shot wounds, one in the breast, and the other in the leg. Miss Breese, becoming frightened, stepped into a nearby hallway as soon as the first shots were fired. There is no suggestion of any element of guilt or wrong doing on the part of Miss Breese or of the plaintiff in error up to the time of the invasion of her room by the officer, nor on her part at any time in connection with the tragedy. It does not appear whether she was ever permitted to return to the little brother or her room, or not, but it is shown that during the whole of the time from that night until the day of the trial she was kept in confinement in the jail. Just why this was made necessary, or even rightful, is not made clear. She was examined as a witness before the coroner's jury, and, probably, at the preliminary examination. On the next day after the tragedy, and without the presence or knowledge of plaintiff in error or any one in his behalf, the county attorney visited her and procured from her a statement of the principal facts of the tragedy. This statement was written by the county attorney and read over to her, and to which she signed her name. It does not appear that the written statement was ever made public or that any others knew of its existence. It corresponded substantially with her testimony given at the trial. In the statement, in describing the affair, occurs the following: "I then heard some one, I think it was the Greek, say 'stop', and then I heard one or two shots. After I heard these two shots I saw the officer take his gun from his clothes, I thought from his pocket, and then I ran into a hallway a few feet away." In her testimony upon the trial she said that after she heard the two shots she "noticed the officer take his hand from his side, and then I ran." The following is a part of what follows in the bill of exceptions: "Q. Take his hand from his side, where? A. Well, his hand from his side. Q. From his pocket? A. Yes, sir; like taking his hand from his pocket. Q. Yes; and when he took his hand from his pocket, what, if anything, did you see in his hand? A. I didn't see nothing. Q. Didn't you see a gun. A. No, sir. Q. In the officer's hand? A. No, sir. Q. You testified at the coroner's inquest about this shooting, didn't you, just a few days-- (interrupted)? A. Yes, sir. Q. Didn't you state at the coroner's inquest, when the officer took his hand from his pocket you then, for the first time, saw his gun?" This was objected to as "incompetent, irrelevant and immaterial; no foundation laid, and an attempt to impeach his own witness." Whereupon the county attorney made the following statement in the presence of the jury: "If your honor please, we are entitled to this question from this witness. Your honor can realize the situation the state is in with this witness who is, in the nature of things, a hostile witness to the state. Now, then, if the state can develop the fact that, since the testimony of this witness taken immediately after the occurrence, there has been marked departure from that testimony and her testimony here on the stand, why, we ought to be entitled to show that. It wouldn't be fair, in other words, for the state to be betrayed into putting a witness on the stand, and have her change her testimony afterwards." Defendant's counsel responded as follows: "The defendant wants the record to show his objection to the question and also his exception to the statements of the county attorney made in the presence of the jury, in reference to what it appears since the former examination, since the preliminary examination or the examination at the coroner's inquest." The court: "The objection is overruled", to which exception was taken. "A. No, sir; I did not." Her attention was then called to the written statement which she made, written by the county attorney, which she testified she signed, that it was read to her, and was correct, and was asked: "Q. And is that the statement, Miss Lillie (counsel handing witness a paper)? A. Yes, sir. I never said that the officer took his gun, I said he took his hand from his pocket like he was taking his gun from his pocket. I didn't say he took his gun from his pocket, I said like he was taking his gun. Q. Like he...