State v. Goham, 37744

• Decision Date: 28 May 1971
• Docket Number: No. 37744,37744
• Citation: 187 Neb. 34,187 N.W.2d 305
• Parties: STATE of Nebraska, Appellee, v. Wayne GOHAM, Appellant.
• Court: Nebraska Supreme Court

Page 305

187 N.W.2d 305

187 Neb. 34

STATE of Nebraska, Appellee, v. Wayne GOHAM, Appellant.

No. 37744.

Supreme Court of Nebraska.

May 28, 1971.

Syllabus by the Court

1. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of such discretion is disclosed.

2. Where a criminal statute is amended by mitigating the punishment after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise.

3. The purpose of kidnapping in every instance is to make it possible to commit some other crime. Its very nature therefore embraces other crimes as well as that of kidnapping. The penalties of kidnapping are intentionally more severe than the other crimes which may be included because of the consequences which often result from its perpetration.

4. It is the rule that a new trial will not be granted on the grounds of newly discovered evidence when the only effect of the evidence is to impeach or discredit the witness.

5. A charge of inadequate representation can prevail only if it can be said that what was or was not done by the defendant's attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the court.

6. The Secretary of the Interior having failed to accept the offer of retrocession embraced in Legislative Resolution 37, Eightieth Session of the Nebraska Legislature, 1969, before it was withdrawn by Legislative Resolution 16, Eighty-second Session of the Nebraska Legislature, 1971, 18 U.S.C.A., section 1162, is still applicable in Nebraska.

William G. Line, Kerrigan, Line & Martin, Fremont, Costello, Porter, Hill, Banks & Nelson, Rapid City, S.D., for appellant.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

SPENCER, Justice.

Defendant Wayne Goham was convicted on an information charging kidnapping and rape, and sentenced to life imprisonment on the former and to a term of not less than 3 nor more than 20 years on the latter. We affirm the convictions but modify the sentence as set out hereafter.

An automobile in which the complaining witness and her companion were riding slid off the road when they tried to negotiate a slippery, rain-soaked county road in Thurston County. Another car, containing seven Indian occupants, came by and the occupants, for two dollars, helped them to get their car moving. The car was backed down the hill, but after a short descent its progress was stopped by the other car which had passed it and blocked the road. The occupants of that car then approached, opened the door on the driver's side, and pulled the companion of the complaining witness from the car, striking him two or three times. He fled to seek help at an adjoining farm house. Two of the occupants of the other car then forcibly pulled the complaining witness out of her car, dragged her to their own, and drove approximately 2 miles to Big Elk Park, which lies along the Missouri River on the eastern border of and in Thurston County, where she was taken out of that car and raped by each of the seven occupants.

William Cayou, who was one of the seven, testified for the State, identified the defendant as the driver and owner of the car, and as the second of the group to be with the complaining witness in the park. The defendant is a member of the Omaha Indian Tribe. The crimes were committed within the limits of the Omaha Indian Reservation, which is situated within Thurston County. The incident occurred on July 26, 1969. Defendant was tried and convicted in March 1970. On October 24, 1970, while an appeal from the conviction was pending in this court, the Secretary of the Interior published a notice in the Federal Register purporting to accept retrocession of jurisdiction over the Omaha Indian Reservation in Thurston County, Nebraska, purportedly pursuant to an offer of retrocession previously made by the Nebraska Legislature in accordance with 25 U.S.C.A., section 1323.

Defendant sets out seven assignments of error. The first is the denial of defendant's motion for a change of venue. He contends that 'An avalanche of anti-Indian publicity' in Thurston County where the crime took place made it impossible to select a fair jury. The record does not support his contention. Defendant concedes his motion for a change of venue was technically defective in that it sought a change of venue to the district court for Douglas County rather than to an adjoining county, and that it was not supported by affidavits. The voir dire examination of the jurors, which is a part of the record, indicates that 79 prospective jurors were called. While a substantial number of them had heard about the case through the various news media, which is not unusual in a case of this nature, the record does not reflect prejudice existing at the time of the trial, which was 8 months later, to sustain defendant's contention. Defendant was able to secure an impartial jury and passed it for cause. Further, no specific complaint of any nature is made herein as to any bias or improper conduct on the part of the jury or any individual juror.

In State v. Losieau, 174 Neb. 320, 117 N.W.2d 775, we said: 'A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of such discretion is disclosed.'

In Dosek v. United States, 405 F.2d 405, the Court of Appeals for the Eighth Circuit said: 'The disposition by a judge of a change of venue motion rests largely in the discretion of the trial court who is the one most familiar with the local situation, and a trial court ruling upon such a motion will be upset only for a clear abuse of discretion.' In that case the Court of Appeals emphasized that defendant had not charged or proved that any juror challenged for cause on valid grounds was not excused.

Defendant's second and third assignments of error involve the penalty inflicted on the kidnapping charge. After the crime was committed but before trial, the Nebraska Legislature amended section 28--417, R.R.S.1943, to provide that the penalty should be death or imprisonment for not less than 3 nor more than 50 years at the discretion of the jury. The penalty in effect when the crime was committed provided the death penalty or life imprisonment at the discretion of the jury. The penalty inflicted was in accordance with the statute as it existed at the time the offense was committed. In view of our subsequent holding in State v. Randolph, 186 Neb. 297, 183 N.W.2d 225, the State concedes that the amendment to section 28--417, R.R.S.1943, which became effective September 19, 1969, should govern the penalty in this case.

In State v. Randolph, Supra, we said: 'There was no specific provision in the amending statute indicating legislative intent as to its prospective or retroactive operation. Section 49--301, R.R.S.1943, provides that repeal of a statute shall not in any manner affect pending actions nor causes of action accrued prior to any such repeal except as may be provided in the repealing statute. This 'saving clause' on repeal applies to both civil and criminal statutes.

'While there is still some divergence of opinion among the states, we believe the better rule to be and we therefore hold that where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise.

'The basic issue is, of course, the intention of the Legislature. As the Supreme Court of California said in In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965): 'It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology."

State v. Randolph, Supra, which involved the kidnapping statute, section 28--417, R.R.S.1943, was not released until January 22, 1971. This was several months after defendant's trial in March 1970.

Section 29--2308, R.R.S.1943, provides: 'In all criminal cases that now are, or may hereafter be pending in the Supreme Court on error, the court may reduce the sentence rendered by the district court against the accused, when in its opinion the sentence is excessive, and it shall be the duty of the Supreme Court to render such sentence against the accused as in its opinion may be warranted by the evidence. No judgment shall be set aside, or new trial granted, or judgment rendered in any criminal case, on the grounds of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, if the Supreme Court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.'

We said in Cryderman v. State, 101 Neb. 85, 161 N.W. 1045, that this statute should be liberally construed in favor of justice. In State v. Hall, 176 Neb. 295, 125 N.W.2d 918, we construed it to grant authority to permit the reduction of a jury-imposed death penalty to life imprisonment when the circumstances indicated to us that life imprisonment was an...