State v. Bundy, 36354

• Citation: 147 N.W.2d 500,181 Neb. 160
• Decision Date: 22 December 1966
• Docket Number: No. 36354,36354
• Parties: STATE of Nebraska, Appellee, v. Charles F. BUNDY, Appellant.
• Court: Supreme Court of Nebraska

Page 500

147 N.W.2d 500

181 Neb. 160

STATE of Nebraska, Appellee, v. Charles F. BUNDY, Appellant.

No. 36354.

Supreme Court of Nebraska.

Dec. 22, 1966.

Syllabus by the Court

1. The credibility of witnesses and the weight of the evidence are for the jury to determine in a criminal case in which the evidence presents an issue of fact as to the guilt or innocence of the accused and the conclusion of the jury may not be disturbed by this court unless it is clearly wrong.

2. This court in a criminal action will not interfere with a 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.

3. 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 cannot be accounted for upon any rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed.

4. The guidelines laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are available only to persons whose trials had begun on or after June 13, 1966, and the rules in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, apply to all cases tried after June 22, 1964.

5. At a trial occurring prior to June 13, 1966, it is not error to admit into evidence statements made by an accused during custodial interrogation by the police where the voluntariness thereof is not challenged and there is no evidence that prior to the statements the defendant had requested and been denied an opportunity to consult with counsel.

6. No judgment shall be set aside, or new trial granted, or judgment rendered in an criminal case on the grounds of the improper admission or rejection of evidence, if the Supreme Court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.

7. Section 29--2222, R.R.S.1943, does not confine the proof on the issue of defendant being a habitual criminal wholly to the documents therein mentioned.

8. Where counsel for a party specifically states in the trial court that he has no objection to the introduction of certain documents, he cannot on appeal urge that they were improperly certified or authenticated and for that reason not admissible.

9. In the absence of the common law or statutes of any other jurisdiction in the United States being pleaded and presented we will presume the common law or statutes of such other jurisdiction to be the same as ours.

William L. Walker, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and BOYLES, District Judge.

BROWER, Justice.

An information containing two counts was filed against the defendant, Charles F. Bundy, in the district court for Lancaster County. The first count accused him of willfully, maliciously, and forcibly breaking and entering a dwelling house on January 9, 1966, with intent to steal property of value. The second count accused him of being a habitual criminal. A trial to the jury in district court resulted on March 8, 1966, in a verdict of guilty on the first count, and at a subsequent trial to the court, he was found to be a habitual criminal and judgment was entered sentencing him to 10 years in the Nebraska Penal and Correctional Complex. He has brought the case here by an appeal.

Such of the assigned errors as are necessary to our decision will be stated as they are discussed.

Defendant contends the verdict and judgment of guilty on the first count was contrary to law and not supported by the evidence, and the trial court erred in overruling his motion to set aside and vacate the verdict for that reason. It is, consequently, necessary to review the evidence which we consider pertinent and controlling.

The testimony shows Henry Schmidt and Katherine Schmidt, husband and wife, occupied the dwelling at 946 North Eighth Street in Lincoln, Nebraska. Henry Schmidt was working as a city fireman at the fire station on Sunday, January 9, 1966. At 10 a.m., Robert D. Goddman, her son-in-law, drove to the Schmidts' home and got Katherine Schmidt and took her to spend the day at her daughter's place. Before leaving, she made sure that all the doors were locked. Goodman brought Mrs. Schmidt back to her home in his automobile at 7:15 p.m. that evening. Their car approached the home in an alley from the east. They noticed a Ford panel truck parked in the alley behind the house. Leroy Cole, who was then standing across the street, crossed over and conversed with Goodman until two policemen came in a cruiser car, arriving at 7:20 p.m. One officer talked with Cole while the other went into the house and observed the broken glass and displaced articles later mentioned.

On entering her home, Mrs. Schmidt discovered several guns lying on the kitchen floor which were previously kept in the gun rack in the bedroom. Glass was broken in the back door and both doors were ajar. A television set was removed from its stand and a record player and several records which were kept elsewhere were all placed on the bed. The little change of their son who was absent was dumped out of the container with two 'little expensive' wristwatches. A large screwdriver, found on a dresser, did not belong to Mr. Schmidt and had not been there when she left. Mrs. Schmidt called the police.

Leroy Cole testified for the State. He stated he drove the defendant, between 11 a.m. and 11:30 a.m. on January 9, 1966, to his home at 2322 T Street in Lincoln, Nebraska, where the defendant was invited to have dinner. About 7 p.m., Cole and the defendant decided to visit Cole's son confined in the hospital. The two thereupon left the Cole home in a 1956 Ford panel truck owned by Cole's father-in-law and driven by Cole. On the way to the hospital the defendant said he wanted to drive past the home of one Neiderhouse at Eighth and Y Streets. They drove by it and, in starting to leave, turned a corner and went through an alleyway where Cole stopped the car at the defendant's request. Defendant got out and went to the house and Cole got out to go to the toilet. While in the alley Cole heard glass break. Thereafter he went to the house, found the glass broken and the door open. Going inside, he called to the defendant who replied that he was in the house. Defendant requested Cole to take some of the articles to the car. Cole went outside, saw car lights, and knew someone was coming. He went back into the house rather than leave the defendant 'stranded like that.' Cole panicked because of the lights, and ran out the front door, crossed the street, and went behind a neighboring house where defendant met him. Cole told the defendant he would have to return to get his father-in-law's car so the latter would not become implicated. Defendant told Cole to meet him on a street by the interstate access route. Cole recrossed the street to the Schmidt premises where, after conversing with Goodman and the officers, he was arrested and taken to the police station. He was serving time in the Nebraska Penal and Correctional Complex on matter involving the same incident.

Mrs. Leroy Cole testified that in the evening she was in the front room of their home on the first floor near the door watching television when defendant and Leroy Cole left the house 'a little bit before 7:00 (p.m.).' She never saw the defendant again until 30 or 40 minutes later when he again entered the door and, without speaking, went directly to the basement recreation room where there were three other men who had been drinking beer and viewing television during the day. About 5 minutes thereafter she answered a phone call which came from the police. Going to the basement she asked the defendant about her husband and he said, "Well, maybe he went for a ride by himself." The other men in the recreation room then went upstairs, and the defendant told Mrs. Cole 'that if we wouldn't say anything and just go along sort of, something to that nature, that everybody would get out of it all right.' Defendant then went upstairs to a bedroom in which there was a baby of another lady staying at the home.

Defendant testified on his own behalf. He stated that at 6:50 p.m. on the day in question, Cole asked him to go to the hospital to see Cole's son. Defendant responded, "I don't know; I don't think so. We'll see." The two men went outside and argued as to defendant going. After 5 or 10 minutes it was decided Cole should go alone. Defendant returned to the house but entered by the back door. He started to go downstairs where the men were but changed his mind and went to the bedroom to play with the baby. About 10 or 20 minutes later he heard a car and went to the living room where Mrs. Cole asked, "Are you and Leroy back?" He answered he had been nowhere and then went downstairs where the men were. Mrs. Cole came down and asked about her husband and said the police had him. Defendant said he did not know what she was talking about. When Mrs. Cole stated the police were coming, he said, "Well, let them come." The baby was crying so he went back to the bedroom.

A taxi driver testified on rebuttal that on January 9, 1966, at 7:45 p.m., he picked up a man at the Cloverleaf Motel and delivered him to 2322 T Street, the address of the Cole home. The addresses and time are on the driver's trip ticket introduced in evidence. The driver testified the defendant was his passenger on that trip. He testified the passenger had a screwdriver but denied that it was the one in evidence found in the Schmidt home.

Captain Lowell Sellmeyer of the police force on rebuttal also testified the defendant told...