State v. Journey, 41961

• Decision Date: 01 November 1978
• Docket Number: No. 41961,41961
• Citation: 201 Neb. 607,271 N.W.2d 320
• Parties: STATE of Nebraska, Appellee, v. Victor JOURNEY, Appellant.
• Court: Nebraska Supreme Court

Page 320

271 N.W.2d 320

201 Neb. 607

STATE of Nebraska, Appellee, v. Victor JOURNEY, Appellant.

No. 41961.

Supreme Court of Nebraska.

Nov. 1, 1978.

Syllabus by the Court

1. The purpose of the requirement contained in section 29- 1602, R.R.S.1943, that the names of witnesses for the prosecution be listed on the information, is to inform the defendant of the names of persons who will testify against him and give him an opportunity to investigate regarding their background and pertinent knowledge. The failure to endorse on the information the names of witnesses to be called by the State is not ground for reversal of conviction in the absence of a showing of prejudice.

2. Under the doctrine of idem sonans a mistake in the spelling of a name is immaterial if both modes of spelling have the same sound and appearance.

3. Under sections 27-702 to 27-705, R.R.S.1943, an expert witness, qualified to be such, may testify in terms of opinion or inference without prior disclosure of underlying facts or data, the weight of such evidence being for the trier of facts.

4. The test of the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such a conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt.

5. Intent may be determined from all the evidence, facts, and circumstances of the case, inclusive of the act, and is a matter for the consideration and decision of the trier of facts.

6. The existence of specific intent may be inferred from the circumstances under the usual rule that every sane person is presumed to intend the usual and probable consequences of his acts.

Ross, Schroeder & Fritzler, Kearney, for appellant.

Paul L. Douglas, Atty. Gen., Melvin Kent Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and KUNS, Retired District Judge.

BRODKEY, Justice.

Defendant below, Victor Journey, appeals to this court from the convictions and sentences imposed upon him by the District Court for Buffalo County, on an amended information charging him in four counts with the offense of robbery, under section 28- 414, R.R.S.1943; shooting with intent to kill, under section 28-410, R.R.S.1943; use of a firearm to commit a felony, under section 28-1011.21, R.R.S.1943; and with being a habitual criminal, under section 29-2221, R.R.S.1943. Having waived a jury trial, he was tried by the court and found guilty of the three crimes with which he was charged. The habitual criminal hearing was later held, at the conclusion of which the court found that under the evidence adduced the defendant was a habitual criminal under the applicable statute. The court sentenced the defendant to a term of 3 to 5 years on count I for robbery; to a term of 15 to 25 years on count II, shooting with intent to kill; and a further term of 3 to 5 years on count III, use of firearm to commit a felony. The court specifically provided that all the foregoing sentences were to be served consecutively.

In his brief on appeal, defendant makes six assignments of error, but only discusses three of them. Therefore, under our Rule 8 a 2 (3), we shall limit our consideration to the three errors assigned and discussed. Those are: (1) The trial court erred in admitting the testimony of state witnesses whose names were not endorsed on the information or amended information; (2) the trial court erred in finding the defendant guilty on counts I, II, and III, when such finding was founded on circumstantial evidence insufficient to prove beyond a reasonable doubt that the defendant committed such crimes; and (3) the trial court erred in admitting the expert testimony of Edward Kerns in regard to a gunpowder residue test when such testimony lacked proper and sufficient foundation and was therefore irrelevant. We affirm the judgments and sentences of the District Court.

The facts of the case are that on July 25, 1977, at approximately 9 p. m., one Jack Muller drove his 1962 Chevrolet pickup to a gravel pit in Buffalo County, Nebraska, and began fishing in a nearby canal. Later, just as it was getting dark, a car arrived at the pit and parked in the opposite direction behind Muller's pickup. The driver of the car came over to the canal and talked to Muller. At the trial, Muller was able to identify the driver of the car, Vernon Ellmers. After the discussion with Ellmers, Muller began preparing to leave. He noticed a passenger in the car but was unable to see him clearly. He was able to identify the car as a dark-colored Skylark. While Muller was in the process of placing his fishing equipment in the back of his truck he heard a gunshot fired behind him. As he started to turn around, a second shot was fired, which hit him in his side. He then ran around his truck to the side of the pit. As he was running he heard three or four more shots. When he got to the pit he swam across it and hid on the opposite side in some trees and brush. He observed the car and his pickup being driven around the pit several times before leaving the area. Muller then walked onto nearby Interstate 80 and flagged down a motorist who took him to the Kearney, Nebraska, interchange. At the interchange Muller informed law enforcement officers of what had taken place and he was then transported to a hospital.

Earlier in the evening, at approximately 9 p. m., a grounds-keeper and watchman at the Fort Kearney State Park, Steven Bartek, observed a brownish colored car parked in a restricted area in the park. Bartek approached the car and talked to the sole occupant whom he later identified as being Vernon Ellmers. Bartek noticed the Arizona license plates on the car and recorded the car's license number as it left the area. At about 9:20 or 9:30 p. m., Bartek saw the brown car again at the park's entrance. On the second encounter Bartek talked with the driver, Ellmers, again, and at trial identified the defendant as the passenger in the car. Ellmers had asked Bartek about a good place to fish and was told about the lakes along the interstate. Ellmers' vehicle was then turned around and left the park. When Bartek's supervisor, Roger Sykes, came by at approximately 10 p. m., Bartek gave him the license number of the Ellmers car. Sykes then went to his home, contacted the Buffalo County sheriff's department and reported having seen the Ellmers vehicle, as a report to be on the lookout for such a vehicle had been broadcast earlier in the day. At approximately 10:20 p. m., several officers from the Buffalo and Kearney County sheriff's departments met Mr. Sykes at the park's entrance. Later a State Highway Patrol investigator Harold Kotschwar, and a conservation officer, Bill Ernst, joined the group at the park. The officers split up and began checking the roads around the interstate for the Ellmers vehicle. As the officers were searching for the Ellmers car a radio broadcast reported the shooting of Jack Muller and also a description of his truck. Shortly thereafter Ernst and Sykes met Muller's pickup coming out of the area where Muller had been shot. The Ernst and Sykes vehicle turned around and followed the pickup into Kearney, Nebraska, where a police roadblock had been set up to stop the pickup. The pickup was stopped, at which time Ellmers was driving and the defendant was a passenger therein. Officers found a revolver under the driver's seat with 6 unfired bullets in it, and, at the same time found another revolver 15 to 20 feet behind the pickup on the passenger side of the pickup, on the edge of the road, with 5 empty shells and 1 unfired shell in the gun's chamber.

An investigator for the State Highway Patrol, Officer Esley Kotschwar, examined the revolver retrieved from the road and by comparing test bullets fired from the gun with the bullet recovered from Jack Muller's body, ascertained that the retrieved revolver was the gun which had shot Jack Muller, and so testified.

The same evening when Ellmers and the defendant was arrested, a detective of the Kearney police department, Edward Kerns, conducted a gun particle residue test upon them. Officer Kerns testified that gunpowder residue was very prominent on the defendant Journey's right hand; and Officer Kerns testified that the gun residue test was also conducted on Ellmers, but that in his case the gunpowder residue "was very minute. It wasn't prominent."

It appears that defendant had been crippled sometime prior thereto in an automobile accident, and his physician, Dr. Staley, testified on direct examination that the defendant's legs were essentially useless. On cross-examination he also testified that the defendant was "probably one-hundred percent completely useless as far as his lower extremities are concerned."

Officer David Tracy of the Kearney police department testified that he had seen the defendant driving a car in May of 1977. However, on cross-examination he admitted that there was a hand control below the steering wheel, but he did not know whether defendant was using it on that occasion.

We first address ourselves to the defendant's assignment of error that the three witnesses who were not listed on the information or amended information should not have been allowed to testify. Section 29-1602, R.R.S. 1943, provides that the prosecuting attorney shall endorse on the information "the names of the witnesses known to him at the time of filing the same; and at such time...