State v. Cook

• Decision Date: 08 March 1968
• Docket Number: No. 36544,36544
• Parties: STATE of Nebraska, Appellee, v. Roy E. COOK, Appellant.
• Court: Nebraska Supreme Court

Page 151

157 N.W.2d 151

182 Neb. 684

STATE of Nebraska, Appellee, v. Roy E. COOK, Appellant.

No. 36544.

Supreme Court of Nebraska.

March 8, 1968.

Syllabus by the Court

1. The existence of probable cause must be determined by a practical and not by any technical standard.

2. Participation and criminal intent may be inferred from presence, companionship, and conduct before and immediately after the offense.

3. When an arrest is made without a warrant, it therefore must be based upon probable cause which exists from facts and circumstances within the officers' knowledge or of which they had reasonably trustworthy information which was sufficient to warrant men of reasonable caution in the belief that an offense has been, or is, being committed.

4. Where there is evidence that several persons participated in a criminal act, the acts and declarations of any one of them, while so participating, are admissible against all of the others.

5. 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.

6. 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.

7. Error may not be predicated on the reception of inadmissible evidence where there has been no objection made to the offer thereof, or where a party has stated he has no objection to such evidence, or where he agrees or stipulates that such evidence should be admitted.

A. Q. Wolf, Public Defender, Fred Montag, Asst. Public Defender, Michael McCormack, Richard J. Bruckner, Omaha, for appellant.

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

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

WHITE, Chief Justice.

This is a companion case to State v. Watson, Neb., 157 N.W.2d 156, and State v. Perez, Neb., 157 N.W.2d 162. Defendant Cook was tried jointly with Perez, and was convicted on both counts of burglary and the possession of burglary tools and sentenced thereon. He now appeals. We affirm the judgment and sentence of the district court.

The defendant's main contention is that his arrest was illegal and that therefore the tools and other items of equipment in the evidence secured as a result thereof are inadmissible. Most of the pertinent facts in this respect are recited in State v. Watson, supra, and State v. Perez, supra, and will not be repeated here. Perez and Watson were arrested after they were observed changing directions, walking rapidly, and dropping or depositing some tools in the weeds or grass nearby. Two crow bars a screw driver, and a flashlight were discovered as a result of this arrest. These actions, and others, recited in the companion opinions, were ample grounds for the establishment of probable cause and the arrest of Watson and Perez. But the police officers then, and we believe reasonably so, made observations and conducted searches in the near vicinity of these two arrests. The defendant was observed nearby sitting in an automobile with out-of-state license plates and reading a newspaper at 5 o'clock in the morning on the day before Memorial Day. The police officer approached the car and observed through the window of the automobile the handle of a screw driver and what appeared to be a pry bar sticking out underneath a pillow on the passenger side of the front seat. On inquiry the defendant gave his name and explained that he was reading a want-ad section of the newspaper because he was looking for a job. The time was 5 o'clock on a Sunday morning and the following day was Memorial Day. The defendant accompanied the police officer to the area where Perez and Watson were being held. As they reached the area, Perez said, 'So they got you, too.' At this point the defendant was arrested.

It seems to us almost self-evident that the officers had reasonable grounds to believe that a crime had been committed and that the defendant's presence in the near vicinity under the circumstances described, together with their observation of the tools inside the car in which he was sitting, and the subsequent statement by Perez to Cook in the officers' presence furnished ample grounds for probable cause for the arrest of Cook. The evidence further, when considered as a whole, establishes probable cause that Perez, Watson, and the defendant Cook were engaged in a conspiracy to commit the crimes that they were charged with. As we have mentioned, each case must be decided upon its own particular facts and circumstances in order to determine the existence of probable cause. The facts in the present case are much stronger than those in State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129. In that case, which is in many respects parallel to the present one, this court said as follows: 'The existence of probable cause must be determined by a practical and not by any technical standard. The sight of what appeared to be burglary tools in the car, under the circumstances, was at the very least an exceptional circumstance, and was justification for investigation. By doing as they did, the officers were giving the defendant a chance to exculpate himself if no cause for arrest existed. The defendant was requested to drive to the police station where his companion was identified as a known burglar. This, in the light of the other circumstances, was sufficient for any police officer of reasonable caution to believe probable cause existed for an arrest for the possession of burglary tools. The arrest was then made.' In the present case the police officers already had probable cause to think that the crime of possessing burglary tools had been committed, they were reasonably searching in the near vicinity for further evidence, tools suitable for burglary purposes were observed in the defendant's car, and he gave an improbable explanation of the circumstances under which he was found. The defendant's arrest was legal and there is no merit to his contentions.

No question is raised in this case as to the sufficiency of the evidence to support the conviction and will not be further discussed herein.

Defendant Cook next argues that the trial court should have ordered a severance of trial and that he was prejudiced by being tried with Perez. The record does not show that the defendant either before or during the trial made an appropriate motion for severance. The first appearance of defendant's motion is after both the State and the defendant had rested their cases. Nor does the record disclose any attempt on the part of the defendant during the trial to establish any prejudicial effect which could result from the joint trial. This was obviously too late. To permit a defendant to proceed to trial without making a motion for severance and to take his chances on a favorable result in the absence of extraordinary circumstances or surprise would permit a defendant to defeat the orderly processes of justice and defeat the expeditious and constitutional purpose embodied in our severance statute, section 29--2002, R.R.S.1943. Even under our old statute, which was amended in 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. Under our present statute, section 29--2002, R.R.S.1943, amended in 1957, jointly charged defendants are not entitled to a separate trial as a matter of right but are entitled to a separate trial if it appears that the defendant or the State would be prejudiced by the joining of the offenses or the defendants in a joint trial. The proper rule is stated in State v. Brown, 174 Neb. 387, 118 N.W.2d 328, wherein the court s...