State v. Lewis

• Decision Date: 07 March 1969
• Docket Number: No. 36888,36888
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Theopholis LEWIS, also known as Theopholis X, Appellant. STATE of Nebraska, Appellee, v. Clarence JACKSON, also known as Clarence 3X, Appellant.

Page 569

165 N.W.2d 569

184 Neb. 111

STATE of Nebraska, Appellee, v. Theopholis LEWIS, also known as Theopholis X, Appellant.

STATE of Nebraska, Appellee, v. Clarence JACKSON, also known as Clarence 3X, Appellant.

No. 36888.

Supreme Court of Nebraska.

March 7, 1969.

Syllabus by the Court

1. The credibility of the witnesses and the weight of the evidence in a criminal case are for the jury and a verdict will not be set aside if the evidence sustains some rational theory of guilt.

2. If the court has instructed the jury generally on the law of the case and has not withdrawn any essential issue from consideration of the jury, error cannot be predicated on failure to charge on some particular phase of the case, unless proper instruction has been requested by the party complaining.

3. Evidence which does not tend to impeach any witness on a material point and which is not substantive proof of any fact relevant to the issues is properly excluded in the trial of a criminal case.

4. In a penal statute it is not necessary that it be so written as to be beyond the mere possibility of more than one construction.

5. Although a penal statute is required to be strictly construed, it should be given a sensible construction and general terms therein should be so limited in their construction and application so as not to lead to injustice, oppression, or an absurd consequence.

6. It is the duty of this court to give a penal statute an interpretation which meets constitutional requirements if it can reasonably be done.

7. Ordinarily, words of common usage need not be defined in the statute or in an instruction of the court.

Ray L. Williams, Omaha, Edward W. Jacko, New York City, Eugene D. O'Sullivan, Omaha, for appellants.

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

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ., and MORAN, District Judge.

WHITE, Chief Justice.

In a consolidated jury trial, the defendants Lewis and Jackson were convicted of forcibly assaulting or resisting a law enforcement forcement officer while engaged in the performance of his official duty and while in the commission of said act of using a deadly or dangerous weapon. Sections 28--729, R.R.S.1943, and 28--729.01, R.S.Supp., 1967. The defendant Lewis was also convicted of assault with intent to inflict great bodily injury upon a police officer, Robert Mahoney. Jackson was sentenced by the court to a period of 2 years in the Nebraska Penal and Correctional Complex and Lewis was sentenced to concurrent terms of 5 years on the two counts of the information described above. From the judgments of conviction and the resulting sentences, both defendants appeal. We affirm the judgments and sentences of the district court.

The pertinent sections of the statute, under which the defendants were prosecuted, are as follows. Section 28--413, R.R.S.1943: 'Whoever assaults another with intent to inflict a great bodily injury shall be punished upon conviction thereof * * *.' Section 28--729.01, R.S.Supp., 1967, provides as follows: 'Whoever forcibly assaults or resists any law enforcement officer while engaged in or on account of the performance of this official duties, shall be guilty of a felony and shall, upon conviction thereof, * * *. Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be guilty of a felony and shall, upon conviction thereof, be punished * * * by a fine * * * or by imprisonment * * *.' The defendants complain of the insufficiency of the evidence. There is ample evidence in the record to sustain the following facts and reasonable inferences therefrom: Lewis, free on bond, appeared in the company of Jackson for a preliminary hearing in municipal court of Omaha, Nebraska. Prior to the hearing an Omaha police officer, Lieutenant Robert Mahoney, had served a warrant on Lewis. He then accompanied Lewis, who was in the company of Jackson and one Zachary, into the courtroom where the preliminary hearing took place. At the end of the preliminary hearing the municipal judge bound Lewis over to district court, and upon surrender by the bondsman, directed the police officer to remand Lewis to the county jail. A mittimus was secured. The order to remand Lewis to the county jail was issued directly by the judge in the courtroom. Mahoney, pursuant to this order, instructed police Sergeant Barrett to call for uniformed police officers to do the actual transporting of Lewis to the county jail. He ordered them to handcuff Lewis. When the uniformed police officers arrived and moved forward to execute the order Lewis insisted that he was not going to jail or to be placed in handcuffs. He bolted forward, thrashing his arms about, bounced off of the wall, and attacked Mahoney directly. Mahoney was dressed in a civilian suit but was armed with a .38 caliber snubnosed pistol which he carried in a holster on his left side under his coat. In the assault on Mahoney, the officer testified that he felt Lewis' hand down around his waist and he immediately placed his own hand on the butt of his gun; that Lewis put his hand on top of the officer's hand and the gun came out of the holster; that thereafter a struggle for possession of the gun continued; that the gun at various times pointed upward, downward, and at times in the general direction of the officer's chest and his head; that the officer had his thumb on the hammer of the pistol and his finger on the trigger; and that Lewis' finger was inside the trigger guard and over the top of his own finger. The evidence shows that a general melee ensued with Zachary striking Mahoney on the back of the shoulders and with Jackson swinging and striking at the other officers who were coming to Mahoney's assistance. Mahoney testified that he was unable to control the gun and he allowed his thumb to come off the hammer which permitted the gun to fire. The gun discharged into Lewis' left leg. Lewis and Mahoney both fell to the floor wresting for control of the gun and that at one point Lewis was on top of Mahoney and that while Mahoney was on his back the gun fired once more; that at this time the gun was pointed toward the shoulders and chest of Lewis when it discharged; and that the struggle continued for a considerable period of time, proceeded from the courtroom, though the door, and out into the corridor or hall. The evidence shows that after the second shot struck Lewis that Lewis' hand came free from the gun thus allowing Mahoney to break loose; and that he got to his feet and assisted another officer by the name of Mead in putting handcuffs on Lewis. Mahoney, Lewis, Jackson, Zachary, and several police officers were involved in the continuous fray in the courtroom and out in the hall which lasted for several minutes. There is voluminous testimony corroborating and filling in the details of the previous skeleton outline of the essential testimony. It is unnecessary to burden this opinion with a recital of it. Suffice it to say that the evidence was ample to sustain the finding that Mahoney was in the process of executing a lawful order to take Lewis into custody; and that Lewis initiated an attack against Mahoney stating, in effect, that his purpose was to resist the arrest and the handcuffing. The use of force in accomplishing this objective is obvious from the above recital. The evidence is conclusive that Lewis knew Mahoney was a police officer, and the inferences are at least reasonable that at the beginning of his attack upon Mahoney he was attempting to control and intended to use the .38 caliber snub-nosed pistol being carried on Mahoney's left hip. Indeed, it may be readily observed, considering the number of officers and people involved, it was indeed fortunate that this unprovoked and highly aggravated assault with the attempt to gain control of the officer's gun did not result in death or serious injury to the participants.

The evidence with reference to Jackson may be succinctly summarized by the direct testimony of Timothy Mead, and Omaha police officer. This witness testified that he was on duty on April 3, 1967; that he was directed along with officer Raisanen to go to courtroom No. 4 on the third floor of the interim city hall; that they both went to the courtroom at about 2:50 p.m.; that there they were ordered by Mahoney to take Lewis to the county jail; that when they approached Lewis and attempted to handcuff him, Lewis backed up; that when Mahoney and Raisanen touched Lewis, he kicked out and knocked him (Mead) to the floor; that when he got back up the other parties were scuffling in the hallway and finally out into the main corridor outside of the courtroom; that when he took a few steps out of the courtroom he heard a shot, felt pain in his right ankle, and again fell to the floor; that he saw Lewis and Mahoney scuffling for control of Mahoney's gun; that he got to his feet, drew his revolver, waited until he had a clear shot at Lewis; that when he did fire at him, he missed; that then things seemed to clam missed; that then things seemed to calm Lewis who was being handcuffed; that when he lowered his gun to his side, Jackson bent his arm back and grabbed the gun from his hand; that someone immediately grabbed Jackson and...