Reizenstein v. State

• Decision Date: 24 January 1958
• Docket Number: No. 34302,34302
• Citation: 87 N.W.2d 560,165 Neb. 865
• Parties: Alex REIZENSTEIN, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 560

87 N.W.2d 560

165 Neb. 865

Alex REIZENSTEIN, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 34302.

Supreme Court of Nebraska.

Jan. 24, 1958.

Syllabus by the Court

1. This court, in a criminal action, will not interfere with a verdict of guilty, based on 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.

2. 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 written confessions, statements, and other documentary evidence for the inspection of defendant's counsel before trial, and error may be predicated only for an abuse of such discretion.

3. The admissibility of statements of a deceased as dying declarations to which objections have been made is a question of law for determination by the court in the light of the facts and circumstances disclosed.

4. A witness who remained with a deceased a considerable period of time before death, heard him talk, witnessed his demeanor, and had an opportunity for reaching a correct conclusion, may testify to his opinion or conclusion that the deceased was aware of impending dissolution.

5. A declaration is admissible in evidence as a part of the res gestae if it was made at such a time and under such circumstances as to raise a presumption that it was the unpremeditated and spontaneous explanation of the matter about which it was made.

6. Elements essential to render statements admissible as res gestae are that, in the instance, there was shock to the feelings sufficient to render the utterance spontaneous and unreflecting; the utterance must have been before there has been time to contrive or misrepresent, and while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and it must relate to the facts and circumstances causing the shock to the feelings.

7. Photographs of the person or body of a deceased, proper foundation having been laid, may ordinarily be received in evidence for purposes of identification, or to show the condition of the body, or to indicate the nature or extent of wounds or injuries thereon.

8. When a fact in issue may be explained by the production of an article or object to which testimony relates it is proper to produce such object or article and exhibit it to the jury.

9. The rule as to the admissibility in evidence of illustrative experiments is that in such cases a discretion is conferred upon the trial court and unless there is a clear abuse of discretion a judgment will not be reversed on account of the admission or rejection of such evidence.

10. The determination of the competency of a child of tender years to testify rests largely in the sound discretion of the trial court whose decision will not be disturbed in the absence of clear abuse of discretion.

11. Evidence of a course of hostility before the commission of a homicide extending down to the homicide is admissible in evidence.

12. It is not error for the court to refuse to give an instruction containing the following maxim, or one containing that substance: 'He who speaks falsely on one point will speak falsely on all.'

13. Instructions are to be considered together to the end that they may be properly understood, and, when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated on the giving of the same.

14. An instruction which has no foundation in the evidence is properly refused.

15. One is conclusively presumed to intend the obvious and probable consequences of his voluntary act.

LaVerne H. Hansen, Gering, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Cecil S. Brubaker, 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 Scotts Bluff County, Nebraska, Alex Reizenstein, who will be referred to herein as the defendant, was charged and convicted of the crime of first degree murder. He was thereafter sentenced to confinement in the State Penitentiary during life. He duly filed a motion for new trial which was overruled. By petition in error to this court he seeks a reversal of the judgment of the district court.

The assignments of error are numerous but they fall into general groups or classifications. One group relates to the sufficiency of evidence to sustain a conviction, one to the foundation for and admissibility of dying declarations, one to the refusal to allow inspection of a statement made by the defendant, one to admissibility of exhibits, one to the admissibility of the testimony of witnesses, one to the refusal of the court to give instructions tendered by the defendant, and one to the giving of instructions by the court on its own motion.

For the purposes of this opinion it appears necessary, before considering the assignments of error, to state the factual background as disclosed by the record. The following pertinent incidents are not in dispute. On and prior to November 30, 1956, the defendant and Lydia Reizenstein were husband and wife and lived in the city of Scottsbluff, Nebraska. A short time before 7:55 p. m., the exact time not being certain, Lydia Reizenstein, who will be hereinafter referred to as the deceased, was wounded in the abdomen by a charge from a 20-gauge shotgun. At the time she was shot she was in the bathroom of the home. She was removed to a hospital where she died about 10:40 p. m. Just before the shot was fired, the defendant searched for and found the shotgun, loaded it, and entered the bathroom after which the discharge was heard. No one saw the gun fired. After the shot the deceased was observed lying on the floor. The defendant was in the bathroom at that time. Police officers arrested the defendant and took him away. From the wound received the deceased died. A statement was taken from the defendant. That statement is not in evidence but a transcript of it appears as an exhibit.

The record does not disclose the exact time when the deceased was shot. Kathleen Reizenstein testified that she heard the shot and immediately went into the bathroom where she saw her mother on the floor. The shooting was immediately reported to the police. A police officer received the report while on patrol duty at about 7:55 p. m. and immediately went to the scene arriving at about 8 p. m. It is therefore reasonable to conclude that the shooting took place after 7 p. m.

Randy Reizenstein, a son, who was 7 years old at the time of the trial, testified that prior to the shooting he was in the bathroom with his mother when his father came in and continued an argument with his mother and stated that he was going to kill them all including himself. Randy left the bathroom, took the shotgun from the place where it was usually kept, and hid it under a bed. He returned to the bathroom where he saw his father trying to get some shells out of a box and his mother was trying to prevent him from so doing. He helped his mother get the box away and he hid it. The defendant came out, found the gun, and returned to the bathroom, after which Randy heard a 'pop' and he turned around and saw his mother lying on the floor and the defendant was standing up with the gun in his hand. He returned to the bathroom and his father laid the gun down and said: "Oh, I love you and I am sorry."

Mary Povoor testified that she called an ambulance and the police; that she then went into the Reizenstein home where she saw the deceased lying on the floor and the defendant sitting in a chair in the bathroom with the gun close beside him leaning against the wall; and that the police came and took the gun and the defendant away. She also testified that she heard a conversation between the deceased and police officer Lee Shipley wherein the deceased said in substance that she was ironing; that the defendant was drinking but wasn't drunk and he started arguing with her in there; and that she didn't pay any attention to him so he went and got the gun and shot her around the stomach. This witness also testified that the deceased told her that the defendant was fighting with her, that she didn't pay any attention to him, and that the defendant was at fault because she didn't pay any attention to him.

These conversations took place before the deceased was removed and taken to the hospital. After she was taken to the hospital an operation was performed and she died about 10:40 p. m. the same evening.

Lee Shipley testified in substance that after he arrived at the scene he talked with the deceased and she told him that the defendant had been drinking all evening and that she was trying to do her ironing; that the defendant came into the bathroom where she was doing her ironing and started giving her the dickens and quarreling with her; that she left the room once to get away from him and then she returned and began her ironing again; and that the defendant appeared with a shotgun and pointed it at her stomach and shot her while she was standing ironing.

This witness further testified that under questioning the defendant admitted that there was an argument; that he got the shotgun and loaded it; that he did this just to scare his wife; that he intended to commit suicide; and that there was a scuffle and his wife grabbed the gun and pulled the trigger. He testified that later the defendant said he did not know how the gun went off.

Dorothea Johnston testified and stated that the last words of the deceased before her death were "Oh, God, please take care of my children." The statement was made about 9:45 p. m.

The testimony of these witnesses as to what the deceased said was objected to on the ground of lack of foundation. The point of the...