Parker v. State

• Decision Date: 17 May 1957
• Docket Number: No. 34091,34091
• Citation: 83 N.W.2d 347,164 Neb. 614
• Parties: Darrel F. PARKER, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 347

83 N.W.2d 347

164 Neb. 614

Darrel F. PARKER, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 34091.

Supreme Court of Nebraska.

May 17, 1957.

Syllabus by the Court

1. In a criminal trial a confession of guilt alleged to have been made by the defendant is not competent in evidence, unless first shown to have been voluntarily made.

2. In laying the foundation for the determination of whether or not a confession was voluntarily made the evidence to establish foundation must be taken out of the presence of the jury, if there is objection to taking it in the presence of the jury.

3. As a basis for the receipt of a confession in evidence the State is required to adduce evidence that the confession was voluntary. Witnesses of the State on this question may be cross-examined and the defendant has the right to adduce countervailing evidence.

4. A confession is admissible if the affirmative evidence shows that it was voluntarily made and that the evidence excludes any other hypothesis.

5. 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 shown it to have been freely and voluntarily made and excludes the hypothesis of improper inducements or threats.

6. 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 for the jury.

7. Where separate confessions have been made each dependent on a separate foundation, admissibility depends upon the separate foundations.

8. Ordinarily evidence of conduct, acts, and utterances of a deceased person unrelated to a homicidal act and unconnected therewith is irrelevant and inadmissible in evidence.

9. The admission of evidence of conduct, acts, and utterances of a deceased person unrelated to a homicidal act and unconnected therewith is ordinarily error, but if it appears that the rights of the defendant were not prejudiced thereby the error may not be regarded as ground for reversal.

10. It is ordinarily within the discretion of the court to permit in rebuttal the introduction of evidence not strictly rebutting.

11. In a criminal case the trial court is invested with a broad judicial discretion in allowing or denying an application to require the State to produce evidence in its possession for inspection by the defendant's counsel before trial.

12. The polygraph, commonly known as a lie detector, used for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory.

13. When on direct examination an objection to a question is interposed by the adverse party and sustained, there must be an offer of proof of the facts sought to be put in evidence by the question in order to present the ruling to this court for review.

14. To make error in a trial available for a reversal in the appellate court it should be called to the attention of the district court and be affirmatively shown on the record for review.

15. In a case where counsel for the State referred in argument to the jury to facts not in evidence, and on objection that the statements were unwarranted by the evidence the court instructed the jury to disregard such statements, there was left no ground for complaint, for the reason that the court, when appealed to, granted all relief requested.

16. The provisions of section 29-2103, R.R.S.1943, are mandatory and a motion for new trial in a criminal action must be filed within 10 days after the verdict is rendered in order to be considered on appeal, except for the cause of newly discovered evidence or unless the defendant was unavoidably prevented from filing the motion within 10 days.

Max G. Towle, Thomas J. McManus, Lincoln, Cook & Drake, William Drake, Glenwood, Iowa, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Homer G. Hamilton, Asst. Atty. Gen., for defendant in error.

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

YEAGER, Justice.

This is a criminal action wherein, in the district court for Lancaster County, Nebraska, Darrel F. Parker was charged with the crime of first degree murder. The action was prosecuted in the name of the State of Nebraska by the county attorney. On a trial of the case Parker was convicted of the charge and was sentenced to a term of life imprisonment in the State Penitentiary. A motion for new trial was filed which was overruled. By petition in error filed in this court he seeks a reversal of the conviction and sentence. He will hereinafter be referred to as the defendant.

Numerous alleged errors are assigned which the defendant insists are grounds for reversal. A question which is basic in the determination of the question of whether or not reversible error is present is advanced collectively by the first three assignments of error. This question relates to the admissibility in evidence of confessions. The three therefore will receive collective rather than separate consideration. The consideration of them requires a brief informative background.

On and for some time prior to December 14, 1955, the defendant with his wife, Nancy Parker, lived in a house [164 Neb. 617] at 3200 Sumner Street, Lincoln, Nebraska. Some time before 12 o'clock noon of December 14, 1955, Nancy Parker came to her death at that address. Her death was reported by the defendant a few minutes after 12 o'clock noon. She had apparently been struck in the face. When she was found cords were tied around her throat and her hands had been tied behind her back with cords. Handkerchiefs had been placed in her mouth. The immediate cause of death was strangulation.

The funeral was held in Des Moines, Iowa. The defendant attended the funeral and thereafter until December 21, 1955, remained in that city. On December 20, 1955, the county attorney of Lancaster County, Nebraska, called the defendant and asked him to return to Lincoln, Nebraska, to aid in the investigation of the death of Nancy Parker. He was asked to report to the headquarters of the Nebraska Safety Patrol. He reported as requested on December 21, 1955, at about 11:30 a. m. At about 11:45 a. m. he met one John E. Reid in a room at the Safety Patrol headquarters where he was interviewed by Reid. This interview lasted until about 2:45 p. m. Thereafter he remained at the headquarters until about 6:30 p. m. when he was again interviewed by Reid until about 8 o'clock. At about 10:10 p. m. a court reporter came to the headquarters after which in response to questions asked by Reid, Parker admitted that he had killed Nancy Parker, his wife. The questions and answers were taken down in shorthand and transcribed by the reporter. The time of taking the questions and answers extended from about 10:10 p. m. to 10:57 p. m. The transcription was concluded about 12:30 a. m., December 22, 1955.

At about 11 p. m., December 21, 1955, the defendant confessed to the killing of his wife to Eugene Masters, a police officer of the city of Lincoln, and at 11:45 p. m. on that date he also confessed to Joseph T. Carroll, chief of police of the city of Lincoln. Neither of these was taken down in writing.

After the confession which was taken by the reporter was transcribed, the defendant, the reporter, Reid, and several others sat around a table and the transcription was read aloud by Reid. The defendant and others had been supplied with copies. After the reading and after corrections had been made by the defendant he signed it. He signed on each page of several copies.

All three of the confessions were admitted in evidence over objections of the defendant. The objection of importance made as to the written confession was that no proper and sufficient foundation had been laid for its admission in evidence. There were two substantial objections as to the other two. The first was that no proper and sufficient foundation, independent of the foundation for the written confession, had been made. The second was that the admissibility of these two was dependent upon the foundation for the written confession for which no proper and sufficient foundation had been laid, hence on that ground these were inadmissible.

The foundation which the defendant contends was absent was a sufficient showing that the confessions were within the meaning of the law voluntarily made.

A general statement of the rule as to admissibility of confessions, and one from which no departure has been found in the decisions of this court, is the following: 'In a criminal trial a confession of guilt alleged to have been made by the defendant is not competent in evidence, unless first shown to have been voluntarily made.' Jones v. State, 97 Neb. 151, 149 N.W. 327. See, also, Tramp v. State, 104 Neb. 222, 176 N.W. 543; Bush v. State, 112 Neb. 384, 199 N.W. 792; Stagemeyer v. State, 133 Neb. 9, 273 N.W. 824; Schlegel v. State, 143 Neb. 497, 10 N.W.2d 264; Cramer v. State, 145 Neb. 88, 15 N.W.2d 323; Kitts v. State, 151 Neb. 679, 39 N.W.2d 283; Gallegos v. State, 152 Neb. 831, 43 N.W.2d 1, affirmed 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86.

This rule is one of dual significance. Under one application the court is called upon to determine on evidence, taken out of the presence of the jury if there is objection to taking it in the presence of the jury, whether or not it has been sufficiently shown that the confession was voluntarily made.

Under the other application if the court has found that a sufficient foundation...