State v. Brown, 35220
| Decision Date | 30 November 1962 |
| Docket Number | No. 35220,35220 |
| Citation | 174 Neb. 387,118 N.W.2d 328 |
| Parties | STATE of Nebraska, Appellee, v. Mary BROWN, Appellee, Impleaded with Norma Levering and Victoria Levering, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In a criminal action the Supreme Court will not interfere with a verdict of guilty based on conflicting evidence unless the evidence is so lacking in probative force that as a matter of law it is insufficient to support a finding of guilt beyond a reasonable doubt.
2. Under section 29-2002, R.S.Supp.1961, a motion for a separate trial is addressed to the sound discretion of the trial court, and its ruling on such a motion will not be disturbed in the absence of an abuse of discretion.
3. A defendant may not predicate error on the admission of evidence to which no objection was made at the time it was offered.
4. Prior inconsistent and contradictory statements of a defendant which were voluntary are admissible for the purpose of impeachment.
5. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld unless an abuse of discretion is shown.
6. The fact that a jury may have deliberated for a relatively short time before reaching its verdict does not establish that it acted with passion and prejudice or ignored the instructions of the court.
Wm. W. Graham, Omaha, for appellants.
Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
The defendants, Norma Levering and Victoria Levering, were convicted of robbery under section 28-414, R.R.S.1943. Their motion for new trial was overruled and they have appealed to this court. Their assignments of error are that the evidence is not sufficient to sustain their conviction; that the trial court erred in refusing to grant them separate trials, in failing to strike certain evidence, and in restricting their right to cross-examine; and that the jury ignored the instructions of the court.
There is evidence from which the jury could have found that Norman L. Runyon, the complaining witness, met the defendants at Morgan's Bar in Omaha, Nebraska, on the evening of March 24, 1961. When Morgan's Bar closed at 1 a. m., Runyon and the defendants went to 1407 Cass Street where they met Mary Brown. About 30 minutes later, as Runyon was leaving 1407 Cass Street, the defendants and Mary Brown 'jumped' him when he was outside the door; that they grabbed him and started whipping him clothes off; that he had about $60 in bills in his right-hand pocket and about $400 in a billfold in his back pocket; that Mary Brown took the billfold out of his back pocket; and that Norma Levering had her hand in his other pocket while Victoria Levering was hitting him. In addition to being beaten with fists, Runyon was struck with a sharp object. When the fight was over, everything, including his car keys, had been removed from Runyon's pockets. Runyon then walked to the police station and reported the robbery. From there he was taken to a hospital and treated for bruises and lacerations about the face and head.
Although there was evidence to the contrary, the evidence was sufficient for the jury to find that Runyon was robbed by the defendants and Mary Brown as charged in the information. It is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. State v. Wilson, 174 Neb. 86, 115 N.W.2d 794.
The defendants and Mary Brown were charged with robbery in one information. Several days before the trial the defendants filed a motion for separate trials supported by an affidavit of their attorney. The motion and affidavit appear in the transcript but the bill of exceptions does not contain any evidence which was before the trial court at the time of the ruling on the motion. Affidavits in support of a motion will not be considered by this court where they are not preserved in the bill of exceptions. Mulder v. State, 152 Neb. 795, 42 N.W.2d 858.
Before 1957, persons who were charged jointly with the commission of a felony were entitled to separate trials as a matter of right if a timely application was made to the court for that purpose. Section 29-2002, R.R.S.1943; Reed v. State, 93 Neb. 163, 139 N.W. 1015. In 1957 the statute was amended and section 29-2002, R.S.Supp., 1961, now provides in part:
The right to a separate trial now depends upon a showing that prejudice will result from a joint trial. A motion for a separate trial is addressed to the sound discretion of the trial court, and its ruling on such a motion will not be disturbed in the absence of a showing of an abuse of discretion. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308; 53 Am.Jur., Trial, § 56, p. 65; 23 C.J.S. Criminal Law § 933, p. 696.
The fact that one of several defendants has made an admission which may be received in evidence against him is not a conclusive ground for ordering the defendants tried separately even though the admission incriminates the other defendants. United States v. Caron, 2 Cir., 266 F.2d 49; Costello v. United States, 8 Cir., 255 F.2d 389. There is some danger of prejudice in any trial involving multiple defendants but severance should be denied in the absence of a showing of prejudice against which the trial court will not be able to afford protection. United States v. Lev, D.C., 22 F.R.D. 490, 2 Cir., 276 F.2d 605. The record in this case does not establish that the trial court abused its discretion in overruling the motion of the defendants for separate trials.
When Mary Brown was searched at the police station she was found to have $222 on her person. A police matron...
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