Roberts v. State

• Decision Date: 01 July 1916
• Docket Number: 19199
• Citation: 158 N.W. 930,100 Neb. 199
• Parties: ROY ROBERTS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

158 N.W. 930

100 Neb. 199

ROY ROBERTS v. STATE OF NEBRASKA

No. 19199

Supreme Court of Nebraska

July 1, 1916

ERRORS to the district court for Lincoln county: HANSON M. GRIMES JUDGE. Reversed.

REVERSED.

James T. Keefe, for plaintiff in error.

Willis E. Reed, Attorney General, Charles S. Roe and George N Gibbs, contra.

SEDGWICK J. ROSE, J., concurring. MORRISSEY, C. J., BARNES, J., HAMER J., dissenting.

OPINION

SEDGWICK, J.

Defendant was convicted in the district court for Lincoln county of murder in the first degree. The jury fixed the penalty at death, and he prosecuted error to this court. He is charged with having killed Vernon Connett on August 2, 1914. Connett was a young farmer whose home was at Bird City, Kansas. Mrs. Connett had not been in robust health, and her physician advised that she live in the open air. Accordingly the Connett family left their home in Kansas and drove across the country, living in a covered wagon, and intending to visit some relatives in this state. They arrived at North Platte July 31, 1914, where, by chance, they met defendant. A friendship appears to have rapidly developed between the two men. Defendant's mother and her husband, Charles Clayton, were employees on a ranch situated about five miles northwest of the city of North Platte. Defendant, together with Connett and his wife and baby, drove to this ranch, arriving about 5 o'clock in the evening. They camped there for the night, and the next day Connett determined to seek work in the neighborhood and to send his wife and baby to their people by rail. Defendant and the Connett family drove to the city of North Platte, where Mrs. Connett and the baby took the train for Mason City. Defendant and Connett then returned to the ranch. They remained there that night and until some time the following afternoon. So far there seems to be no conflict in the evidence. Connett was killed, and this defendant disposed of Connett's property, and did other things and conducted himself generally so as to leave no doubt that he had a part in the tragedy that resulted in the death of Connett. Defendant was about 22 years of age at the time of the alleged crime. He had been convicted of robbery and sentenced to an indeterminate term in the penitentiary, but prior to the date charged in the information, had been released from the penitentiary on parole. Clayton was also a paroled convict, and the defendant's mother had been living with Clayton for several years as his wife. Clayton and his wife were at first arrested for the crime, but, so far as the record shows, they were not prosecuted. The questions to be tried were whether the crime committed was premeditated murder to obtain the property that Connett had with him and calling for the death penalty, or whether the killing was done in a quarrel and the appropriation of Connett's property was an after-thought so that the crime was of a less degree. Was the crime committed by this defendant alone, or was the fatal blow struck by Clayton, making him the principal and his wife and the defendant accessories thereto? According to the testimony for the state, defendant and Connett drove away from this ranch about 4 o'clock Sunday afternoon, saying that they were going to the neighborhood of Hershey, where they expected to find work, and Connett was never again seen alive.

The evidence, if true, would relieve Mr. and Mrs. Clayton from suspicion. The defendant's testimony was that while they were at the ranch an altercation arose between himself and Connett which resulted in Connett's knocking defendant down, and while Connett was continuing his attack and was leaning over defendant attempting to choke him, upon defendant's cries for help, Clayton rushed to the scene and struck Connett several blows upon the head which caused his death. He says that Clayton first removed the body, and afterwards he and Clayton planned the disposition of the body and the property of Connett. Defendant disposed of the property, and says that he divided the proceeds with Clayton. He is to some extent corroborated in this. It is shown that he received gold coin for some of Connett's property. Clayton testified that he did not receive any of the property or the proceeds thereof, and also testified that he had not had any gold coin from any source. There was some evidence that soon after Connett's disappearance Clayton paid a $ 5 gold coin for liquor at a saloon.

When such a crime as this is committed, so dangerous to the safety of society, it is of the highest importance to ascertain the truth of the case, to establish the real character of the crime, and fix the responsibility upon the guilty party. Unfortunately for the interests of humanity it is not always possible to do this. The greatest criminal is often able to divert attention from himself, and to turn the vengeance of the public against one who may not be free from guilt, but who is less guilty than himself. It too often happens that the one least guilty, or perhaps even entirely innocent of the crime, is made to bear the punishment therefor, and so satisfy the sense of justice of the community, too readily convinced in the eager and laudable desire to see the crime properly punished. For these reasons, the Constitution and laws have provided certain regulations for the trial of persons charged with crime intended to prevent the terrible mistake of allowing the guilty to escape punishment through a mistaken belief on the part of the public and the authorities that justice had been done. According to the defendant's testimony, there were four living witnesses to the crime besides the defendant himself, Mr. Clayton, his wife, Mrs. Clayton's little girl, and a boy about 17 years old named Jones. Clayton and the boy testified to the essential facts relied upon as fastening the guilt upon the defendant. Mrs. Clayton was called only in rebuttal to explain an incident which it was claimed indicated her participation in the crime. The little girl was offered as a witness by the defendant, but was excluded by the court. And so we do not have the evidence of either Mrs. Clayton or the little girl, both of whom were present and witnessed the crime, according to the defendant's version.

The court removed the trial from the court-room to the theater, and stated as a reason therefor: "By reason of the insufficiency of the court-room to seat and accommodate the people applying for admission, and also by reason of there being some question as to the safety of the building crowded to its full capacity as it is, it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where trial proceeded." The stage was occupied by court, counsel, jury, witnesses, and officers connected with the trial. The theater proper was crowded with curious spectators. Before the trial was completed it was returned to the court-room and concluded there. At the adjournment of court on one occasion the bailiff announced from the stage: "The regular show will be tomorrow; matinee in the afternoon and another performance at 8:30. Court is now adjourned until 7:30." The court manifested no disapproval of this announcement. The defendant now insists that such proceedings were prejudicial to the calm consideration of his cause to which he was entitled.

The law requires that trials shall be public, but this requirement is satisfied by admitting those who could conveniently be accommodated in the court-room where the law requires such trials to be held (Rev. St. 1913, sec. 1162), without interrupting the calm and orderly course of justice. This young man was already a convict. Did the jury infer from these, and other similar transactions, that it was immaterial in what manner the defendant was tried; that it was not necessary to take great pains in weighing the evidence against a convict who by his own admissions had violated the law? It is not clear that the defendant was not prejudiced by these proceedings.

The defendant demanded that the state's witnesses be separated so as not to hear each other's testimony. In some jurisdictions this is a matter of right. 1 Greenleaf Evidence (16th ed.) sec. 432, says: "This order, upon the motion or suggestions of either party, is rarely withheld." Binfield v. State, 15 Neb. 484, 19 N.W. 607. In our state it has been considered to rest in the discretion of the trial court. This court has said that the practice of so separating the witnesses "is a good one, as it tends to elicit the truth and promote the ends of justice." Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 138, 141, 74 N.W. 403. So far as we now recollect, the court has never suggested what would amount to an abuse of discretion in that regard. To have separated these witnesses would seem to have been peculiarly appropriate in this case. It was urged that the witness Johnny Jones was of weak mind and under the influence and control of Clayton, with whom he worked. Clayton testified to a condition which would relieve himself of all guilt and place the awful responsibility for this crime upon the young man. The boy Jones reiterates the story of Clayton in all its details, and so the evidence of Roberts is overborne, and it is supposed to be established beyond a reasonable doubt that Roberts is alone responsible for the death of Connett. Such conditions call for the separate examination of the witnesses, and this court has never held that it is not an abuse of discretion to deny the request under such conditions. The reason given by the court for refusing to separate the witnesses was stated upon the record: "The temperature ranging about zero, and by reason of the fact that there is no place where witnesses can be kept,...