Scott v. State
| Decision Date | 15 May 1931 |
| Docket Number | 27541 |
| Parties | JACK SCOTT v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
Mere presence of recently stolen property on the premises occupied by a third person, with whom defendant was living, though unexplained, is insufficient to establish defendant's guilt as to the theft or robbery of such property.
Where however, the evidence has connected the defendant and another person as participants in the theft or burglary, the fact that the property stolen was found in the possession of such other person is admissible against the defendant. But, in order to render such evidence competent, there must be evidence of conspiracy, which may be direct or circumstantial.
The scope and effect of the provisions of section 29-2308, Comp. St. 1929, can be determined only in connection with constitutional provisions, and with other sections of the statutes in pari materia.
Section 29-2308, Comp. St. 1929, so construed, and held (a) to effect no change in the requirements previously existing as to the manner of the proper preservation of the record of errors for review in criminal proceedings, nor in the proper presentation thereof to this court; (b) it does not authorize this court to declare that there has been no substantial miscarriage of justice in a criminal case, merely because the court from an examination of the evidence may believe the defendant guilty of the crime charged; (c) that, in questions involving misconduct of prosecuting attorneys, the constitutional right of defendant, charged with a felony, to have a fair determination of the facts involved in a criminal prosecution adversely to the accused, by a constitutional jury, as a prerequisite to lawful infliction of punishment, is vitally impaired if the effects of material errors occurring at his trial (intrinsically and substantially prejudicial, and otherwise reversible in character) are made to depend, when presented for review, on the conclusion of this court as to his guilt; (d) in such case, it is the imperative duty of this tribunal to require and exact for the accused a fair and impartial jury trial wholly uninfluenced by, and irrespective of, his condition or the opinion of the reviewing judges as to his guilt.
Evidence examined in the instant case, and held, that the accused was not accorded a fair and impartial trial, and that it appears that a substantial miscarriage of justice occurred therein.
Cooper v. State, 120 Neb. 598, 234 N.W. 406, so far as applicable to misconduct of prosecuting attorneys, approved.
Error to District Court, Lancaster County; Frost, Judge.
Jack Scott was convicted of burglary, and he appeals.
Reversed, and cause remanded for a new trial.
M. L. Poteet and G. E. Price, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
OPINION
This is an appeal by Jack Scott, hereinafter called the defendant, from a conviction on a charge of burglarizing the Denton State Bank with explosives on the night of January 29/30, 1930. The evidence is wholly circumstantial.
The state relies for conviction on evidence that in a house, garage and curtilage rented by one Holtzclaw and occupied by him, his wife, and little child, as a home, on the day ensuing the commission of the burglary, there was found, concealed, burglar tools, dynamite, caps and fuses for same, two bottles of nitroglycerine, a syringe for use therewith, two revolvers, one with a touch of soap thereon similar to soap used by the burglars at the bank, and $ 755.42 in currency; that in a stolen automobile, abandoned at a schoolhouse a mile distant from the Holtzclaw home, but on the public road between it and Denton, there was found $ 10 in dimes and a silver quarter.
The Denton State Bank coin wrappers in which some of the money was found, the peculiarly marked ten-dollar gold piece, and the watch fairly identified the property thus discovered as the proceeds of the Denton State Bank burglary. It also appears that on the night of the burglary Scott did not return to his lodgings until 2 a. m.
On the part of the defendant it may be said that none of the property thus identified was found on his person, or in his possession, or in any containers owned or controlled by him, or in a room exclusively occupied by him; that, when he was arrested and searched, in his billfold was found $ 16.56 in money bearing no identifying marks. There was concealed on his person two ten-dollar bills. In view, however, of the fact that the Denton State Bank, according to the evidence, lost but twenty-nine ten-dollar bills, and in the money thus found and identified as the proceeds of the burglary was included forty-one ten-dollar bills, it is obvious that no presumption of guilt can arise from the possession by Scott of the two concealed ten-dollar bills.
The evidence, however, fairly connects Holtzclaw with the commission of the crime. For three weeks prior to the burglary, Scott was admittedly a boarder and lodger in Holtzclaw's home, and paid a weekly stipend for this service. Still it may be said there is no evidence which directly associates Scott with Holtzclaw during the night of January 29/30, 1930. Even the evidence as to his return at 2 a. m. is given in connection with a statement that at the time of his return he was in company with two men, neither of whom was Holtzclaw, and neither of whom, so far as disclosed by the information in this case and the evidence in the record, is charged by the state with participation in this offense. There is, in the record, no direct evidence of conspiracy between Holtzclaw and this defendant.
Appellant presents numerous assignments of error, including a challenge to the sufficiency of the evidence, but stresses in his argument the alleged misconduct of the county attorney.
As to the sufficiency of the evidence, it may be said that this court seems committed to the view that the mere presence of stolen property in a house leased and occupied by a third party, with whom the accused was living, and thus an occupant of the house, does not make the lessee's possession of the stolen articles in question that of the accused, to the extent of holding the latter accountable in law for the possession of stolen property. Graeme v. State, 118 Neb. 113, 223 N.W. 673. See, also, People v. Wilson, 7 A.D. 326, 40 N.Y.S. 107; State v. Castor, 93 Mo. 242, 5 S.W. 906; Turbeville v. State, 42 Ind. 490; Conkwright v. People, 35 Ill. 204; State v. Drew, 179 Mo. 315, 78 S.W. 594.
It must be remembered in this connection, however, that, where the evidence has connected the defendant and another person as participants in the theft or burglary, evidence of the fact that the property stolen was found in the possession of such other person is admissible against the defendant. But in order to render such evidence competent there must be evidence of conspiracy, which may be direct or circumstantial. State v. Drew, 179 Mo. 315, 78 S.W. 594.
It being deemed necessary to reverse this conviction on other grounds, and to award a new trial, at which the evidence may be materially different, the question of the sufficiency of the evidence in the present case is not determined.
As we are, in reviewing a conviction by a proceeding in error by statute, required to determine the effect of errors "after an examination of the entire cause," the evidence outlined will be considered, whether required or not, in the light of its proper legal weight and effect, in connection with the assignments of error based on the alleged "misconduct of the prosecuting attorney." The charge was burglary, a felony, and the defendant elected not to be sworn or appear as a witness in his own behalf.
The following unquestioned principles of law and statutory provisions thereupon became operative and controlling:
(1) "As a general rule, evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution." Fricke v. State, 112 Neb. 767, 201 N.W. 667.
(2) "In the trial of all indictments * * * against persons charged with the commission of crimes or offenses, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness; nor shall the neglect or refusal to testify create any presumption against him, nor shall any reference be made to, nor any comment upon, such neglect or refusal." Comp. St. 1929, sec. 29-2011.
(3) Comp. St. 1929, sec. 20-1214.
From a careful examination of the bill of exceptions we determine that, in view of the rule announced in Zediker v. State, 114 Neb. 292, 207 N.W. 168, and sections 20-1139, 20-1140, 20-1919, 29-2020, Comp. St. 1929, sufficient exceptions were taken on behalf of accused, and that it thus reflects the following facts for our consideration:
(1) That in his opening statement to the jury in this case the county attorney said: "The state will prove that the defendant has served numerous sentences in numerous penitentiaries on previous occasions, one for attempted manslaughter."
(2) That later, during the progress of the trial, in his argument to the jury, the county attorney said, in substance "According to the law of Nebraska, the defendant had a right to take the stand and the state had no right to put him on the stand, but he could have taken the stand if he had wished to, and if he is innocent, why didn't he...
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Scott v. State
...121 Neb. 232236 N.W. 608SCOTTv.STATE.No. 27541.Supreme Court of Nebraska.May 15, [236 N.W. 608]Syllabus by the Court. Mere presence of recently stolen property on the premises occupied by a third person, with whom defendant was living, though unexplained, is insufficient to establish defend......