Small v. State

• Decision Date: 08 November 1957
• Docket Number: No. 34180,34180
• Citation: 165 Neb. 381,70 A.L.R.2d 984,85 N.W.2d 712
• Parties: , 70 A.L.R.2d 984 Paul SMALL, also known as Paul R. Small, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 712

85 N.W.2d 712

165 Neb. 381, 70 A.L.R.2d 984

Paul SMALL, also known as Paul R. Small, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34180.

Supreme Court of Nebraska.

Nov. 8, 1957.

Syllabus by the Court.

1. The general rule is that a person of ordinary intelligence who first qualifies himself to speak upon the subject by showing that he has had opportunity for personal observation may give opinion testimony as to a person's identity from any fact that leads him to believe that he knows the identity of the person in question.

2. Such person may base his conclusion upon the form, size, manner, walk, tone of voice, or any mark or peculiarity of the person, rather than upon a view of his features.

3. Where an accused is identified by a witness who has had a reasonable opportunity to observe him such evidence is admissible and the probative value of such evidence is a question for the jury.

4. The positive testimony of one credible witness, identifying the defendant as the perpetrator of the crime of robbery, may be sufficient to support a conviction.

5. The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of his guilt.

6. It is the province of the jury to determine the circumstances surrounding, and which shed light upon, the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed.

7. The unsupported testimony of the accused in a criminal case, which the jury does not believe, cannot be said to furnish a hypothesis consistent with the innocence of the accused.

8. In a criminal prosecution any testimony otherwise competent which tends to dispute the testimony offered on behalf of the accused as to a material fact is proper rebuttal testimony, and it is within the discretion of the court to permit in rebuttal the introduction of evidence not strictly rebutting.

9. This court in a criminal action will not interfere with the verdict of guilty based upon 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.

10. The credibility of witnesses and the weight of the evidence are for the jury to determine in a criminal case and the verdict of the jury may not be disturbed by this court unless it is clearly wrong.

Schrempp & Lathrop, Omaha, for plaintiff in error.

C. 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.

MESSMORE, Justice.

The information in this case against the plaintiff in error Paul R. Small, hereinafter referred to as the defendant, charges him with robbery under section 28- 414, R.R.S.1943. On this charge a trial to a jury was had resulting in a verdict of guilty. Thereafter the defendant's motion for a new trial was overruled and a sentence of confinement in the State Penitentiary for a period of 15 years was imposed. The defendant prosecutes error to this court.

Two grounds for reversal are presented: (1) The trial court erred in failing to sustain the defendant's motion to direct a verdict of acquittal or in the alternative to dismiss the information; and (2) the trial court erred in admitting rebuttal testimony which had no reasonable relationship to the defense. We consider the assigned errors in the order above enumerated.

The first assignment of error has to do with the sufficiency of the evidence to take the case to the jury.

There is no doubt in this case that Margaret W. Kellogg was the victim of an armed robbery at approximately 8 p. m., on October 18, 1955. The residence here involved was owned by Margaret W. Kellogg. It is located at 5601 Farnam Street in Omaha, and faces the east. There is a front door on the east and an entrance consisting of french doors on the north into a solarium from which entrance may be had to a living room and to a staircase leading to the upper floor. On the upper floor to the north is a bedroom occupied by Mae Hamernick who was a nurse companion of Mrs. Kellogg. There is also a hall, an upstairs living room, and a bedroom occupied by Mrs. Kellogg in the south part of the second floor. In the latter room was a safe in which she kept some money and other valuables. In the house on the night of the robbery were Mrs. Kellogg, Mrs. Hamernick, Mrs. Arthur a friend who at times visited Mrs. Kellogg, and also a friend Miss Gladys Rohrs who arrived at the Kellogg residence about 10 a. m., on the day of the robbery. She stayed there most of the day and was there for dinner about 6 p. m. After finishing dinner, about 6:30 p. m., Mrs. Kellogg and Miss Rohrs went upstairs. There was a television set in Mrs. Kellogg's bedroom and they decided to watch a television program that came on at 8 o'clock. Miss Rohrs sat in a chair by the bed and Mrs. Kellogg lay down on the bed to watch the program. Just previous to this time Mrs. Hamernick and Mrs. Arthur, who had remained downstairs to tidy up the kitchen, came upstairs and went into Mrs. Hamernick's bedroom at the north end of the second floor. To get to Mrs. Kellogg's bedroom it was necessary to go through a sitting room. There was a wood panel door which blocked the entrance to the sitting room and a gate to confine some small dogs owned by Mrs. Kellogg. The main door was open and the gate across the door was in place.

Miss Rohrs testified that they heard a crash of glass. She got up to see what happened. She had slipped off her shoes. She picked them up and started through the living room to go into the hall. As she came through the hall door, a masked man grabbed her left arm and endeavored to pull her out into the hall. She told him to let go, that she had to open the little gate to get into the hall, which she did. This man had a silk stocking covering his face. He held a gun which he pointed at her and, in an excited tone of voice, told her to come out in the hall. They had an argument about her putting on her shoes, which she eventually did. After she got into the hall, this man told her to stand to one side. There was a light in the living room, but no light in the hall. About that time Mrs. Kellogg came to the door to see what the noise was about. The masked man saw her and yelled: 'This is the one we want.' Mrs. Kellogg slammed the sitting room door. Miss Rohrs further testified that there were two masked men in the house. The other one was in the room where Mrs. Hamernick and Mrs. Arthur were. He came running down the hall. After Mrs. Kellogg slammed the door, the masked man who held the gun on Miss Rohrs turned the lights on and off in the hall. The two masked men proceeded to break down the door to gain entrance to Mrs. Kellogg's bedroom. At that time Miss Rohrs ran down the back stairs and gained entrance to the Roncka home which is just south of the Kellogg residence. From the front porch of the Roncka home she could see one of the masked men and Mrs. Kellogg at the safe. The masked man was standing over Mrs. Kellogg. She later saw the same men running east across the street. She further testified that the man who pointed the gun at her kept changing the gun from one hand to the other as he was talking to her in the hall; and that he was slight of build, had on a light beige sport jacket and, she supposed, gabardine trousers. He also had on a hat. She heard his voice in a conversation lasting a minute or two. She could not observe his features through the silk stocking mask because it came below his chin, to about the middle of his neck. He was nervous and in a crouching position at times. Both of the masked men were about the same build, except the man who came down the hall might have been a little heavier. This man had no conversation with her.

Mrs. Mae Hamernick testified that she lived with Mrs. Kellogg as a nurse companion, and was at the residence the night of the robbery. She and Mrs. Arthur were in her bedroom looking at television when they heard a 'rumbling' noise which was almost below her window. They got up to investigate, and at that time a man came running down the hall. He had a gun and said it was a hold up, and 'I mean it.' He came into her room. He was going to lock them in the bathroom, but there was a lock on each side and he decided that would not do. He looked around, and directed Mrs. Hamernick to sit at the head of the bed, which she did. This man then went down the hall toward Mrs. Kellogg's room. She further testified that the man she saw was not big. He had on a light sport coat with black blotches in it and heavily padded shoulders. He was wearing a hat. She could give no description of the other man. The man she saw had a stocking over his face.

Proper foundation was laid for the introduction of Mrs. Kellogg's evidence taken at the preliminary hearing, as she was too ill to testify at the trial. Her evidence was read to the jury. She testified that about 8 p. m., on October 18, 1955, she was held up by two robbers who each had a gun. She and Gladys Rohrs were in her bedroom watching television. Mrs. Hamernick and Mrs. Arthur were in Mrs. Hamernick's bedroom also watching television. Mrs. Kellogg was lying on the bed watching the program and Miss Rohrs was sitting in a chair. They heard a noise and jumped up. By the time they got from the bedroom to the sitting room door the robbers were at the door. One of them went into Mrs. Hamernick's room to take care of her and Mrs. Arthur, and said he was going to kill them. The other robber had a gun pointed...