State v. Konvalin

• Decision Date: 16 July 1965
• Docket Number: No. 35978,35978
• Citation: 136 N.W.2d 227,179 Neb. 95
• Parties: STATE of Nebraska, Appellee, v. Dale LeRoy KONVALIN, Appellant.
• Court: Nebraska Supreme Court

Page 227

136 N.W.2d 227

179 Neb. 95

STATE of Nebraska, Appellee, v. Dale LeRoy KONVALIN, Appellant.

No. 35978.

Supreme Court of Nebraska.

July 16, 1965.

Syllabus by the Court

1. The testimony of a witness in a criminal action which identifies a defendant as a participant in the commission of a crime is sufficient to sustain a finding of guilt if the witness had a reasonable opportunity to observe and recognize the defendant.

2. In a criminal action, an appellate court will not interfere with a verdict of guilty based upon conflicting evidence, unless it is so lacking in probative force that it can be said as a matter of law that it is insufficient to support a finding of guilt beyond a reasonable doubt.

3. A gun found under circumstances tending to show that it was used in the commission of a crime and tending further to show ownership or possession by the accused is admissible as evidence.

4. The credibility of witnesses and the weight of the evidence in a criminal action are for the jury to determine.

5. The verdict of a jury based upon conflicting evidence in a criminal action will not be disturbed by this court unless it is clearly wrong.

6. When the punishment of an offense created by statute is left to the discretion of the trial court within prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion.

A. O. Wolf, Michael McCormack, Fred J. Montag, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., CARTER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and WESTERMARK, District Judge.

CARTER, Justice.

The defendant was convicted in the district court for Douglas County for robbery with a gun of the persons of Kenneth Malskeit and Lorraine, Orr, and of the further offense of assaulting Lorraine Orr with intent to rape. The defendant was sentenced to imprisonment for 20 years on each of the two counts for robbery with a gun, such sentences to run concurrently, and to an additional sentence of 7 years imprisonment for an assault on the person of Lorraine Orr with intent to commit rape. The defendant appeals.

The contentions of the defendant are: (1) The evidence was insufficient to sustain the convictions, (2) the trial court erred in admitting exhibits 4, 5, and 6, and (3) the sentence was excessive. No contention is made that the jury was not properly instructed.

The evidence in this case shows that at about 12:30 a. m., on February 14, 1964, the complaining witnesses, Kenneth Malskeit and Lorraine Orr, were sitting in Malskeit's parked automobile in the 600 block on South Thirty-eighth Street in Omaha, Nebraska. A man with a gun sudenly approached the car, opened the door, pointed the gun at the complaining witnesses, and announced that 'this is a stick-up.' The gunman entered the car and ordered Malskeit to drive the car as directed. Twice during the ensuing trip, Malskeit was struck with the gunmean's pistol for alleged failure to follow driving instructions. The car was stopped on a dirt road southwest of South Thirty-ninth Street and Pacific Street. The place was a lonely, uninhabited area, grown up to weeds near a railroad and what is described as a rock quarry. The gunman took money from each of the complaining witnesses. He then locked Malskeit in the trunk of the car and proceeded south with Lorraine Orr. Some distance south of the car he announced his intention to Lorraine that he was going to rape her. She resisted and was struck down by the gunman. When she regained consciousness, the gunman had removed her pettipants and was opening or removing his own clothing for the evident purpose of carrying out the act of sexual intercourse. Lorraine grabbed his gun hand and broke away in the darkness. In the meantime, Malskeit had broken the lock mechanism in the car trunk with a tire iron and was running in the direction from which the screams of Lorraine came when she met him. The gunman fired one shot from a pistol, but the two were able to escape in the darkness. They found their way to a residence in the general neighborhood, and the police were notified. The police made a cursory examination of the site of the crimes, but, due to darkness, the investigation was continued until the next morning. The next morning, a thorough investigation was made by the police. A nine millimeter shell casing was found on the dirt road which is identified in the record as exhibit 6. The gunman was not apprehended at or about this time. The evidence of the robberies with a gun and the assault with intent to rape are not disputed by this record. The issue is primarily one of the identification of the gunman as being the defendant.

The evidence shows that the Malskeit automobile was equipped with an interior light which came on automatically when a door was opened. Each time the car door was opened, the complaining witnesses could plainly see the gunman. He was described as wearing a black leather jacket, and a hat which was pulled down on his head. They heard him talk and had a recollection of his exposed facial features. Subsequent to the commission of...