Smith v. State

• Decision Date: 06 February 1901
• Docket Number: 11,651
• Citation: 85 N.W. 49,61 Neb. 296
• Parties: CHARLES B. SMITH v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

85 N.W. 49

61 Neb. 296

CHARLES B. SMITH v. STATE OF NEBRASKA

No. 11,651

Supreme Court of Nebraska

February 6, 1901

ERROR from the district court for Nemaha county. Tried below before STULL, J. Affirmed.

AFFIRMED.

H. A Lambert, E. B. Quackenbush and Francis Martin, for plaintiff in error.

Constantine J. Smyth, Attorney General, and Willis D. Oldham, Deputy contra.

OPINION

HOLCOMB, J.

The defendant, plaintiff in error, was charged with and convicted of the crime of murder in the first degree, the penalty being by the jury fixed at imprisonment in the penitentiary during life. The homicide charged in the information was the killing of the wife of the defendant by shooting with a revolver. It is disclosed by the record that the deceased came to her death from a bullet wound in her right temple; that at the same time the defendant received a wound from a bullet entering the right side and back part of his head, which ranged forward and came out above and in front of the right ear, the bullet penetrating only beneath the skin, and apparently deflected from its course by coming in contact with the skull. The tragedy occurred in the kitchen of the dwelling-house occupied by the defendant and deceased. The evidence on which the conviction was had was circumstantial. The defense interposed, and as conducted during the trial of the case, was on the theory that the deceased first shot the defendant as he was passing her while she was standing in the kitchen, causing the wound alluded to, the shock producing unconsciousness for a short time, during which she fired the fatal shot resulting in her own death. A very short time after the tragedy, after others had appeared on the scene, the defendant, passing into an adjoining room, shot himself with the same weapon through the stomach, the ball entering a little to the side and above the navel, ranging downward and through his body, and lodged so as to be easily extracted from the hip. The state submitted testimony regarding the circumstances surrounding the tragedy and regarding the location of the room, furniture, etc., the finding of a bullet on the floor in one part of the room; and to the absence of bullet marks on the walls, doors or windows of the room. The homicide occurred April 22. The trial began June 25 following. During the introduction of testimony for the defense a witness was called by whom it was sought to prove that on the day previous (June 26) the witness had made an examination of the room of the house in which the tragedy occurred and found a mark on the door, leading from the kitchen to the sitting room, resembling the mark of a bullet. The question by which the testimony was sought to be elicited was objected to and the objection sustained. Counsel for defendant then made the following offer: "Defendant offers to prove by this witness, that on the 26th day of June this witness went to the house of Smith with Mr. Schantz, who has had control of the same and possession of it, and made an examination of the room for bullet marks and that on the door between the kitchen and the sitting room about an inch below the upper hinge of the door, he found a distinct mark about the size of a 38 bullet that would have struck lengthwise." And the following objection was made and sustained, the ruling thereon being assigned as prejudicial error: "State objects, as the time fixed by the witness is three months after the shooting, and it has already been testified by persons who found the bullet that they made careful examinations of the room the same night the jury was there and there were no bullet marks on either the windows or doors. Incompetent. Irrelevant. Immaterial. Sustained. Exception." The testimony was offered as tending to prove a circumstance in support and corroboration of the theory of the defendant relative to the question of how the shooting occurred and who did the same. We assume the testimony was excluded because of the remoteness of time at which the mark was discovered from the time of the principal transaction, and, under the circumstances, the proposed testimony was regarded as of no evidentiary weight and irrelevant to the issues raised.

It appears from the record that for about ten days after the homicide the defendant, with others, occupied the premises for residence purposes, the last two or three days of which the defendant had recovered from the wounds received sufficiently to move about the rooms and outside of the building. After the defendant had left the premises, one Schantz, the father of the deceased, had control, but who had immediate possession or access to the building does not appear. The time elapsing from the homicide to the finding of the mark, of which the witness was interrogated, was sixty-five days. Whether or not in fact the mark was made by a bullet seems to be purely conjectural, and whether it was made at the time of the homicide and as a result of the shooting, which then occurred, is even more uncertain. Its connection with the transactions under investigation can only be inferred from the statement made in the offer that it was a mark "about the size of a 38 bullet that would have struck lengthwise." This fact alone, it seems to us, renders its connection with the principal facts so uncertain as to destroy its relevancy, and the circumstances as to time, and use and occupancy of the building, negative all probative force that otherwise it would possess. Had the mark been discovered at or near the time of the principal transaction, or were the proposed testimony such as from it the jury would be warranted in deducing the inference that it was made by a bullet fired at the time of the death of the deceased or wounding of the defendant, its relevancy and materiality could not be open to question. But when it is discovered more than two months after the occurrence, and when the room had been occupied, and open to all comers, with the opportunities for and probabilities of a similar mark being made in countless ways, and without any means of identification or connection with the transactions occurring at the time of the homicide, it can hardly be said to be more than mere speculative and conjectural evidence. The question presented is entirely different from a case where the circumstance, object or fact sought to be established by proof as a collateral fact to the main issue, though discovered long after the principal transaction, is capable of identification and connection with the main fact. In the latter case, lapse of time and the element of remoteness would not be so important and controlling as in the former. "The rule," says POST, C. J., in Blomgren v. Anderson, 48 Neb. 240, 242, 67 N.W. 186, in speaking of the admission of testimony as to collateral facts corroborative of the principal contention of the parties to a case, "as said by one author, 'excludes all evidence of collateral facts which are incapable of affording any reasonable presumption as to the principal matters in dispute; and the reason is that such evidence tends needlessly to consume the public time, to draw the minds of the jurors from the points in issue, and to excite prejudice and mislead; moreover, the adverse party, having had no notice of such evidence, is not prepared to rebut it. The due application of this rule will occasionally tax to the utmost the firmness and discrimination of the judge; so that while he shall reject, as too remote, every fact which merely furnishes a fanciful analogy or conjectural inference, he may admit as relevant the evidence of all those matters which shed a real, though perhaps indirect and feeble, light on the question in issue. And here it will generally be found that the circumstances of the parties to the suit, and the position in which they stood when the matter in controversy occurred, are proper subjects of evidence; and, indeed, the change in the law enabling parties to give testimony for themselves has rendered this proof of "surrounding circumstances" still more important than it was in former times.' (Taylor, Evidence, sec. 316; 1 Greenleaf, Evidence, sec. 52 et seq.)" Were we to indulge in presumptions and probabilities regarding the origin of the mark made on the door, it would seem that there are far stronger reasons for the conclusion that it was made in some accidental manner, possibly on purpose, by those coming and going in and about the house, and its apparent resemblance to a mark that might be made by a 38 calibre bullet is no more than a coincidence. A careful examination of the record forces upon us the conclusion that the remoteness of time, and uncertainty as to what relation it may sustain to the main facts in the case, render the proposed testimony of inconsequential value, if not entirely worthless as evidence. We do not think any substantial right of the defendant was impaired by the ruling of the trial court thereon.

At the request of the state the following instruction was given the jury, to which an exception was taken, and error is now sought to be predicated thereon: "The court instructs the jury that when the evidence fails to show any motive to make an assault or commit a crime this is a circumstance in favor of the innocence of the party accused. And in this case if the jury find upon a careful examination of all the evidence that it fails to show any motive, cause or reason on the part of Louise Smith to assault and murder the defendant then you should consider this fact in determining the truth or falsity of the claim made by the defendant that his wife first shot him and then killed herself." It is admitted by counsel for defendant that as an abstract proposition of law the instruction is without error, and that the subject dealt with therein may be properly argued by co...