State v. Hall

• Decision Date: 31 January 1964
• Docket Number: No. 35502,35502
• Citation: 176 Neb. 295,125 N.W.2d 918
• Parties: STATE of Nebraska, Appellee, v. Ewther HALL, Appellant.
• Court: Nebraska Supreme Court

Page 918

125 N.W.2d 918

176 Neb. 295

STATE of Nebraska, Appellee, v. Ewther HALL, Appellant.

No. 35502.

Supreme Court of Nebraska.

Jan. 31, 1964.

Syllabus by the Court

1. Under section 29-2002, R.R.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.

2. A defendant may not predicate error on an instruction that is more favorable to him than is required by the law applicable to the charge made.

3. Where the charge to the jury, considered as a whole, correctly states the law, the verdict and judgment will not be reversed merely because a single instruction, when considered separately, is incomplete.

4. A homicide committed in the perpetration of a robbery is murder in the first degree. S. 28-401, R.R.S.1943.

5. In such a case, the turpitude of the act supplies the element of deliberate and premeditated malice.

6. Evidence examined and held to support the verdict of guilty of first degree murder, but the sentence of death is reduced to imprisonment for life.

Adolph Q. Wolf, Public Defender, Edward T. Hayes, Fred J. Montag, Asst. Public Defenders, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., CARTER, MESSMORE, SPENCER, BOSLAUGH and BROWER, JJ., and LYNCH, District Judge.

MESSMORE, Justice.

This is a prosecution upon an information filed by the State of Nebraska against Ewther Hall, appellant, hereinafter referred to as defendant, that he did, while in the perpetration or attempt to perpetrate a robbery, kill Albert Alfred Anderson which constituted the charge of murder in the first degree. Another information charging the same crime was filed against Curtis Eugene Rowland. The State filed a motion requesting that the two cases be consolidated. This motion was sustained. The jury returned a separate verdict for each defendant. The defendant in the instant case was found guilty of murder in the first degree as charged in the information, and the penalty was fixed as death. Motion for a new trial on the part of the defendant Hall was overruled, and this defendant was granted leave to file a motion for rehearing within 1 week, which motion was overruled. The motion for new trial on behalf of defendant Rowland was sustained. Defendant Hall was sentenced to suffer the death penalty. Defendant Hall brings the case to this court for review.

The defendant Hall moved for separation of the two cases because his counsel was informed by competent experts that this defendant was a person of very low mentality and that his right to have a fair trial might be prejudiced by the presence of the defendant Rowland. The defendant Rowland moved for a separate trial on the ground that the testimony of a psychiatrist, a witness for the defendant Hall, would be adverse to the interests of the defendant Rowland. The above motions were overruled.

In State v. Brown, 174 Neb. 387, 118 N.W.2d 328, section 29-2002, R.S.Supp., 1961, is set forth and provides in part as follows: 'Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. * * * If is (it) appears that a defendant or the state would be prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder of offenses in separate indictments, informations, or complaints for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.' The court said: '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 [had] 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.'

Defendant Hall contends that without the confession of Rowland the State had a doubtful, circumstantial case against him which would not prove his guilt beyond a reasonable doubt. This contention is without merit as a summary of the evidence will disclose.

With reference to the confession of the defendant Rowland, the trial court made clear and repeated admonitions to the jury at appropriate times that Rowland's statements were not to be considered in establishing guilt against defendant Hall, and that such evidence as to defendant Hall constituted hearsay evidence.

As stated in United States v. Kahaner, D.C., 203 F.Supp. 78: 'The general rule is that persons jointly indicted should be tried together, particularly so where the indictment charges * * * a crime which may be proved against all the defendants by the same evidence and which results from the same or a similar series of acts.' Many cases are cited to this effect. The court went on to say: "* * * the defendant is entitled to a separate trial as a matter of right only upon a showing of prejudice * * *.' * * * The ultimate question is whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.' See, also, Wiley v. United States, 4 Cir., 277 F.2d 820.

In the instant case the trial court gave long-approved cautionary instructions to consider any statement or confession only as to the defendant making it. The record in this case does not establish that the trial court abused its discretion in overruling the motions of the defendants for separate trials. This contention cannot be sustained.

The widow of Alfred Anderson, the victim in the instant case, testified that her husband drove a cab for the Checker Cab Company, and was so employed on December 9, 1961. He came to her room in the hospital where she was a patient. He had on gray slacks, a shirt, and a gray jacket, and had his glasses on. He asked her if she needed money, and she saw the billfold which he carried. He left the hospital about 8:30 or 8:35 p. m., and the billfold at that time was in his pocket.

An employee of the Checker Cab Company on duty on December 9, 1961, whose duties required taking orders over the telephone from anybody who wanted a cab, testified that she would write the order out and turn it over to the dispatcher. On December 9, 1961, a telephone call was received for a cab. The request came from Twenty-fourth and Cuming Streets. The cab was to stop at the Thull drugstore on that corner. The name given was John, and the call came in right after 8:30 p. m. The order was given to the dispatcher.

The dispatcher took the order and dispatched a cab to Twenty-fourth and Cuming Streets, and gave the driver the name of John. The driver of the cab checked with the dispatcher by radio and indicated the number of the cab, which was cab No. 12. An exhibit shows this action took place on December 9, 1961, at 8:36 p. m.

A driver of a bus for the Omaha Transit Company was driving a bus the night of December 9, 1961, and stopped the bus at Twenty-fourth and Cuming Streets around 8:37 or 8:40 p. m. The bus was headed south. Thull's drugstore was on the northwest corner of the intersection and a service station on the northeast corner of the intersection. There was a public telephone booth on the driveway of the service station. This driver observed two persons crossing Twenty-fourth Street from the east to the west on the north side of Cuming Street. They crossed Twenty-fourth Street and stood on the curb. The bus was parked at the curb on the northwest corner. One of the persons was taller than the other, and they were colored male persons. When the bus moved on these persons were at the east wall of the drugstore. The bus left at about 8:40 p. m. At the trial was witness identified and pointed out these two persons, who were the defendants.

The manager of a cafe at 2403 Cuming Street near Thull's drugstore, testified that she was on duty on December 9, 1961; that she observed a Checker cab which came to the intersection of Twenty-fourth and Cuming Streets and stopped right beside Thull's drugstore on the Cuming Street side; that she was looking out the window and saw two persons get into the cab; that these persons were colored; and that one was a little shorter than the other.

The defendant gave a statement which was read into evidence. He stated that he was 19 years old; that he was born in Stuttgart, Arkansas; and that he came to Omaha in 1955, and lived with his aunt. He had known the defendant Rowland for 2 years. Rowland talked to him about committing a robbery. The...