Stagemeyer v. State, 29953.

CourtNebraska Supreme Court
Writing for the CourtEBERLY, Justice.
Citation273 N.W. 824,133 Neb. 9
PartiesSTAGEMEYER v. STATE.
Docket Number29953.
Decision Date18 June 1937

273 N.W. 824

133 Neb. 9

STAGEMEYER
v.
STATE.

No. 29953.

Supreme Court of Nebraska.

June 18, 1937


[273 N.W. 825]

Syllabus by the Court.

1. " A statement of facts claimed by the prosecution to be equivalent to a confession of guilt will not be considered unless it is first shown to have been voluntarily made and without inducement." Cheney v. State, 101 Neb. 461, 163 N.W. 804.

2. " After the prosecution has introduced preliminary evidence as to the voluntary character of the confession the accused may, before the confession is received in evidence or read or stated to the jury, introduce evidence to show that the confession is involuntary, and for this purpose may show all of the circumstances under which the confession was made. In this respect defendant may cross-examine the witnesses who testified for the prosecution, defendant may take the stand and testify as a witness for himself, and defendant may call other [133 Neb. 10] witnesses to testify on this question. The prosecution may introduce evidence to rebut defendant's evidence as to voluntary character of confession." Underhill, Criminal Evidence (4th Ed.) pp. 557-559.

3. Tramp v. State, 104 Neb. 222, 176 N.W. 543, adhered to.

4. Where the state offers in evidence a purported confession of an accused, and an issue of the use of the " third degree" in obtaining the same is clearly raised on behalf of accused, not only should all surrounding facts and circumstances be fully investigated, but defendant may produce, as bearing upon the voluntariness of the confession, evidence of the condition of his body at the time of and immediately after the making of the alleged confession, as well as the statements of himself which have a bearing on, and tend to disclose the circumstances under which, the alleged confession was made.

5. An error which prevents proper consideration by the jury of the controlling question upon which a case must turn is substantial, and not technical, and may not be disregarded by an appellate court.

6. " Wherever the writings or words of such party (charged jointly with the commission of a criminal offense) amount to an admission merely of his own guilt, and cannot be deemed acts done in furtherance of the common design, they can be received in evidence only against the party making or uttering them." Zediker v. State, 114 Neb. 292, 207 N.W. 168.

7. " It is a general rule that, on the trial of one accused of crime, proof of distinct and independent offenses, even of a similar nature, is inadmissible. To this rule there are exceptions; but, in order to make evidence of other independent offenses admissible, it must appear that the evidence offered falls within one of the recognized exceptions." Abbott v. State, 113 Neb. 517, 524, 204 N.W. 74, 206 N.W. 153.

8. " The general rule is, that a statement in the nature of an admission or confession, in order to be admissible, must relate to the offense in question. While the fact that such statement may include another offense as well as that charged does not prevent the confession being received and going to the jury with proper instructions when there can be no separation of the relevant from the irrelevant parts, when the relevant parts can be separated from the irrelevant this must be done and that part, only, of the confession admitted which is material to the issues on trial." People v. Spencer, 264 Ill. 124, 106 N.E. 219.

Error to District Court, Furnas County; Eldred, Judge.

Duard Stagemeyer was convicted of burglary, and he brings error.

Reversed and remanded, with directions.

The constitutional provisions defining rights of accused and right to counsel cannot be gainsaid. Const. art. 1, §§ 7, 11, 12. [273 N.W. 826]

Perry, Van Pelt & Marti, of Lincoln, J. F. Fults, of Beaver City, and J. P. O'Gara, of Lincoln, for plaintiff in error.

Richard C. Hunter, Atty. Gen., and Edwin Vail, Asst. Atty. Gen., for the State.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

EBERLY, Justice.

The defendant, who is plaintiff in error here, was found guilty of the charge that he, in conjunction with Fred Stombaugh and Vick Hargis, in Furnas county, Nebraska, on February 2, 1935, did wilfully, maliciously and forcibly break and enter into a store building owned by the Farmers Co-Operative Oil Company, a corporation, with intent to steal goods and chattels of value of the said corporation, then in said store building, and did unlawfully steal and carry away property of the value of $70 without consent of the owner thereof. The defendant was tried separately by the district court. At the conclusion of the trial, the jury returned a verdict finding him guilty as charged. From the order of the trial court overruling his motion for a new trial, defendant prosecutes error.

The evidence in the record discloses that the Farmers Co-Operative Filling Station in Holbrook, Furnas county, Nebraska, was on the night of February 2, 1935, feloniously entered by burglars, and about $70 in cash stolen therefrom. The sole evidence connecting the defendant therewith consists of certain confessions, which included a confession purporting to have been made by William E. Brown, and on April 3, 1936, reduced to writing by the county attorney of Furnas county, and signed by Brown, identified in the record as exhibit 2; a confession purporting to have been made by Fred Stombaugh, and on April 4, 1936, reduced to writing by the county attorney of Furnas county, and signed by Stombaugh, identified in the record as exhibit 3; [133 Neb. 12] and also a confession purporting to have been made by the defendant, and on April 4, 1936, reduced to writing by the county attorney of Furnas county, and signed by defendant Stagemeyer, identified in the record as exhibit 4. Defendant made due objection to the introduction of all evidence on the subject of confessions as each item was offered, and, further, excepted to the ruling of the district court admitting the same in evidence, " without the defendant having an opportunity to show the fact that these (confessions) were obtained by threats and by promises, and after the defendant had been told they would give him the ‘ third degree' the same as they had Stombaugh; and after he had been struck by one of the officers in whose custody he was; this, the defendant objects to and insists upon his constitutional rights to present his evidence before they (the three written confessions) are received in evidence." This exception and request was denied by the trial court, and the prosecuting attorney was directed to " proceed," and he thereupon read to the jury exhibits 2, 3, and 4.

In this discussion, for convenience, the officers engaged in this transaction, though their names appear in the bill of exceptions, will be referred to as the sheriff, the deputy sheriff, the deputy state sheriff, the railroad detective, and the county attorney.

The evidence offered by the state prior to the rulings of the trial court admitting the confessions in evidence is, in substance, that in the afternoon of April 3, 1936, the deputy state sheriff and a railroad detective were in Beaver City. William E. Brown had been arrested, and that afternoon a typewritten confession embracing twenty-one questions and answers was signed by him, which is witnessed by the county attorney, the deputy state sheriff, and the railroad detective. From the state's evidence alone we glean that no complaint as to defendant was then filed, and no warrant was issued for his arrest, but the county attorney orally directed the sheriff to arrest the defendant and four others. This direction was immediately complied [133 Neb. 13] with. The sheriff and his deputy proceeded to Holbrook. The defendant was there arrested at his home, and, late in the afternoon of the same day, with the others, was placed in the county jail at Beaver City. The sheriff then called up the railroad detective at McCook by telephone, advised him of the arrest, and soon thereafter the deputy state sheriff called up the sheriff by telephone from McCook and advised that officer that he and the railroad detective were coming to Beaver City immediately. These two officers arrived at Beaver City about 12:30 a. m. on April [273 N.W. 827] 4, 1936. The sheriff and his deputy awaited their arrival at his office, which the record indicates is in the building where the county jail is situated. The testimony of the officers is that on their arrival the sheriff went out and brought back the county attorney, and while the sheriff was away his deputy brought Stombaugh alone from the jail into the sheriff's office. The evidence of the officers is that when the county attorney arrived Stombaugh was permitted to read Brown's confession (exhibit 2), and, without any solicitation, threats, or inducement, he at once agreed to confess; that the county attorney thereupon typed a statement which Stombaugh then freely and voluntarily signed, wholly uninfluenced by threats, violence, or inducements of any kind. This statement is exhibit 3 and contains 159 words. Thereafter, the preliminary proof of the state is that Duard Stagemeyer, defendant, was brought into the office, and these officers swear that Brown's confession (exhibit 2) was given to him to read, followed by the production of the Stombaugh confession (exhibit 3) for his inspection, and he (defendant) in turn, without any protestation of innocence, immediately admitted his guilt and announced his willingness to execute a like confession. The county attorney thereupon propounded a few questions to him, and then typed the same, which, as exhibit 4, the officers present swear was immediately, freely and voluntarily signed by defendant. The sheriff testifies that neither at the time of his arrest at his home on April 3, nor during his journey to the county jail, nor previous to his being [133 Neb. 14] brought to the office, had...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT