State v. Kirby, 37232

• Decision Date: 06 March 1970
• Docket Number: No. 37232,37232
• Citation: 175 N.W.2d 87,185 Neb. 240
• Parties: STATE of Nebraska, Appellee, v. Ronald Eugene KIRBY, Appellant.
• Court: Nebraska Supreme Court

Page 87

175 N.W.2d 87

185 Neb. 240

STATE of Nebraska, Appellee, v. Ronald Eugene KIRBY, Appellant.

No. 37232.

Supreme Court of Nebraska.

March 6, 1970.

Syllabus by the Court

1. A party in the selection of a jury ordinarily has no right to examine a juror out of the presence of all other jurors.

2. Whether, during the trial of a criminal case, the jury shall be allowed to separate, after being duly cautioned, is a matter for the discretion of the trial court, and the exercise of such discretion, unless abuse or prejudice is shown, furnishes no ground for error.

3. One who cannot subordinate his personal views to what he perceives to be his duty to abide by his oath as a juror and to obey the law of the state must be excused for cause.

4. The asking of improper questions of a witness to which objections are sustained by the court does not constitute prejudicial error in the absence of a showing that defendant was thereby deprived of a fair and impartial trial.

5. A defendant is entitled to a fair trial but not a perfect one.

6. As a general rule, evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution.

7. In crimes involving motive, criminal intent, or guilty knowledge, evidence of independent crimes wholly disconnected with the one charged may be received.

8. A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof.

9. A defendant in a criminal case who becomes a witness subjects himself to the rules applicable to other witnesses.

A. Q. Wolf, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellee.

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

SPENCER, Justice.

Defendant was convicted of the murder of Gilbert Arthur Batten, Jr. He was sentenced to life imprisonment and has perfected an appeal to this court.

The murder occurred shortly after 3 a.m., on September 20, 1968, at 3724 Ohio Street, in Omaha, Douglas County, Nebraska. Defendant had been to the premises on two other occasions the previous evening, looking for a Judy Dunbar. The premises in question were occupied by James Lynch with his four minor children. Defendant appeared at the premises about 7 p.m., on September 19, in the company of a tall Indian later identified as Robert Walker, and a Donna Marshall. He was carrying a .22 caliber survival rifle. On this occasion he did not enter the house but asked Lynch if he had been dating Judy Dunbar, and when Lynch told him he had defendant told Lynch to stay away from her and Lynch said he would. Defendant shot two or three times at a brush pile and Walker shot at a rabbit. They were at the premises for approximately 15 or 20 minutes. On that occasion Donna Husky, her child, and Eugene Phillips, all of whom were also living on the premises, were present, as well as the deceased who lived in the neighborhood, and Judy Warner who lived elsewhere.

Defendant returned to the premises at 11:30 p.m., on September 19, 1968, this time with a girl named Pam or Patty. He was admitted to the premises by the deceased. He was still carrying the gun he had on his previous visit. Lynch was not home. Judy Warner, Eugene Phillips, Donna Husky, deceased, and Harriet Taylor, a neighbor, were the only ones present other than the children, who were asleep. Deceased asked Judy Warner to get defendant a beer, and when she did not respond quickly enough defendant said, '* * * when he talls them to do something they do it,' and ordered the girl with him to get down on her knees, which she did. Defendant was dissatisfied with the brand of beer offered, and left within 15 minutes. When he left he said he was going to see if he could find Judy Dunbar at her home. If not, he would be back.

Subsequently, Lynch returned home about 12 midnight and went downstairs to bed. Defendant returned to the premises about 3 a.m., on September 20, 1968. Deceased and Judy Warner were sitting on a couch in the parlor. Defendant asked for James Lynch, and when he was told Lynch was asleep in the basement he asked how to get to the basement, and forced the deceased, who opened the door, to show him the way. Defendant still had the gun in his hand. He was accompanied on this occasion by Walker and a man with long hair, wearing a 'Hell's Angels cut-away jacket,' who was later identified as Orval Hinz.

According to defendant's testimony, he told Walker to go around a screen in the basement and to get Lynch. Lynch testified that he was dragged out of bed by Walker; that when he was pulled around the screen, the deceased was on his knees; that someone hit him with a gun; and that's all he remembers. Lynch heard a shot, and when he came to, the deceased was lying there in a pool of blood. Lynch got to his feet and pushed his three boys, who were also sleeping in the basement, out of the basement window, followed them, and they went next door until the police arrived.

Defendant testified that he told deceased to get down on the floor; that Walker put Lynch beside him; and roughed him up with the gun stock which had been detached from the gun. Defendant held the rest of the gun in his hand, with the trigger cocked. Deceased was 3 or 4 feet directly in front of defendant, on his knees. Defendant, who ws left-handed, had the gun in his left hand, with his finger on the trigger which had to be squeezed or pulled to fire the gun. Defendant admitted his finger squeezed or pulled the trigger. Defendant's explanation of what happened is as follows: 'What happened? Well, Robert was slapping on the guy or whatever he was doing. He turned around and got a little close. He said, 'Watch me. Don't point that thing,' and he pushed both hands on the barrel and the gun goes off. He said, 'What happened?' He said, 'What did you do?' I said, 'Do nothing.' I said, 'The thing went off and Batten fell over. " Defendant testified that things then got hectic. They looked at the guy that got shot and blood was gushing, and they broke for the stairs. Defendant thought that Hinz was several feet behind him, back by the stairs, when all the activity was going on. He doesn't recall what happened afterwards, but they left the premises.

Judy Warner testified that when defendant's party arrived at 3 a.m., she was sitting upstairs on the couch with deceased. When defendant ordered deceased to go to the basement, she awakened Eugene Phillips and Donna Husky who were sleeping in a bedroom off the parlor, and went to the basement. Defendant turned toward her, pointing the gun. Lynch was on his knees alongside deceased. Defendant had the barrel and the trigger to the gun pointed at deceased. The stock was not on it. Walker had the stock, and hit Lynch on the face with it. She then went to the three Lynch boys who were sleeping in beds behind the plastic curtain. The fourth Lynch child was asleep upstairs in the back bedroom. At this time Hinz stood over by the steps, holding a piece of iron pipe. She could only see shadows after she went behind the curtain. After she had comforted the children she started to go upstairs, and Hinz said he would kill her if she moved, so she went back to the children. She then heard a shot and started screaming. When she came out from behind the curtain, defendant still had the gun and deceased was lying on the floor. Lynch was leaning back, half stunned. She stood there, and the defendant and the other two men ran upstairs. She went to the deceased. He was bleeding severely from his head. She ran up the steps to the kitchen and defendant, who was coming out of the front bedroom, turned on her and hit her with the gun on her left cheek. She fell backwards and returned to the basement. Lynch was then pushing the children out the window. She ran back upstairs to call the rescue squad for deceased.

Phillips testified that Judy Warner awakened him at about 3 a.m., and when he heard the shot he started looking for a shotgun he knew was upstairs and started to load it, when someone swung at him with a rifle. Someone grabbed the person who swung at him, and said, "Let's get out of here."

Donna Husky testified that defendant had the barrel of the gun in his hand when he came into her bedroom upstairs. She had heard the gunshot before she saw the defendant with the barrel. Walker had the stock of the gun at this time.

A pathologist testified that the bullet wound was to the right, just below the bridge of the nose, and that he removed a number of particles of lead slug, primarily in the right cerebral hemisphere of the brain. He testified it was the bullet which caused the death, and from the absence of powder burns the muzzle of the gun must have been at least 2 feet away.

Judy Dunbar testified tht she had been going with defendant, but had not seen him for over a month. He had beat her up in August with his fists, and had struck her with a gun. Subsequently she had been out with deceased, and had dated Lynch a couple of times. She had been at the Lynch home twice September 19, 1968. On the first occasion Lynch had taken her to driving school, where he left her. She returned to the Lynch home after driving school, and Lynch then took her to a friend's and later to her home. Her brother-in-law then took her to her brother's home in South Omaha, where she spent the night.

About 11 o'clock in the evening of September 19, 1968, defendant was at the home of Judy Dunbar's parents, inquiring for her. The testimony is that he broke the lock on the outer door and entered the house. He was holding a gun. He was there for 6 or 7 minutes.

Defendant was permitted to file a supplemental brief herein. The nature of it is such that we would ordinarily strike it as scandalous and profane. In it defendant attempts to discredit his counsel and ...