State v. Mayes

• Decision Date: 24 May 1968
• Docket Number: No. 36710,36710
• Parties: STATE of Nebraska, Appellee, v. Marden MAYES, Appellant.
• Court: Nebraska Supreme Court

Page 203

159 N.W.2d 203

183 Neb. 165

STATE of Nebraska, Appellee, v. Marden MAYES, Appellant.

No. 36710.

Supreme Court of Nebraska.

May 24, 1968.

Syllabus by the Court

1. Evidentiary statements made subsequent to an illegal arrest are not ipso facto tainted by it.

2. For a question of constitutionality to be considered in this court, it must be previously raised in the trial court. If it is not raised in the trial court it may not be considered in this court.

3. Evidence of another crime, similar to that charged, is relevant and admissible if it tends to prove a particular criminal intent which is necessary to constitute the crime charged.

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

A. Q. Wolf, Public Defender, Lynn R. Carey, Jr., Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.

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

SPENCER, Justice.

Defendant, after a jury trial, was convicted of uttering a forged instrument and sentenced to the Nebraska Penal and Correctional Complex. He has perfected an appeal to this court. His printed brief sets out two assignments of error: (1) The insufficiency of the evidence; and (2) the admission of certain alleged oral statements.

The sufficiency of the evidence is not argued in defendant's brief except as it may be inferred from defendant's contention that all evidence should be excluded because defendant's arrest was illegal and that his statement must be excluded as the fruit of an illegal arrest.

There is no merit to defendant's first assignment of error. He rested at the close of the State's case, and consequently produced no proof to rebut the State's evidence which is fairly conclusive of his guilt.

Defendant, whose name is Marden A. Mayes, cashed a $10 check payable to M. A. Mayes, dated February 22, 1967, and purportedly executed by one Ilona Tway, Tway Van & Storage, for expenses at an Omaha bar. He had been employed by Tway Van & Storage Company, operated by Iola G. Tway, for approximately 3 weeks, but terminated his employment January 28, 1967. Two bartenders from other bars in the vicinity of the bar in question testified defendant had earlier attempted to cash a similar check in their respective bars but they had refused to cash it.

The check in question was cashed before 7 a.m. on February 22, 1967, and deposited in the bank on which it was drawn sometime after noon. Defendant was arrested on February 23, 1967. The check was returned by the bank through the United States mail. There are three dates stamped on the back of the check, with the endorsements: February 23, February 24, and February 27. The evidence is undisputed that defendant was arrested without a warrant on February 23, 1967, and that a police officer, investigating the alleged uttering of a forged instrument at the bar in question, talked to defendant about the check on the morning of February 24, 1967. This officer fully advised defendant of his constitutional rights, and thereafter defendant voluntarily admitted writing and passing the check at the bar in question.

Defendant's printed brief is entirely premised on the theory that his arrest on February 23, 1967, was illegal and that the record reflects no evidence of a crime previous to February 27, 1967. The only reasonable inference from the record is that probable cause existed on February 23, the date of defendant's arrest, and that he was specifically interrogated as to the specific crime on the morning of February 24. Defendant argues: 'Nowhere in the record is there any evidence that a crime was suspected until after February 27. (Which, as suggested above, is erroneous.) The arrest was consequently illegal and the alleged oral confession of Defendant should have been excluded pursuant to the ruling in Wong Sun v. United States, 341 (371) U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.'

Assuming, for the sake of argument, an illegal arrest, evidentiary admissions are not ipso facto tainted by it. In United States v. McGavic, 6 Cir., 337 F.2d 317, certiorari denied 380 U.S. 933, 85 S.Ct. 940, 13 L.Ed.2d 821, the trial court ruled the arrest illegal, ruling out certain physical evidence obtained by the illegal search, but admitting certain statements given by the defendant some 2 1/2 hours after his arrest. In that case, the court, commenting on the 'poisonous tree' doctrine in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, stated: 'In the Wong Sun case the statements of Toy made simultaneously with the illegal arrest and the unsigned confession of...