State v. Watson

• Decision Date: 08 March 1968
• Docket Number: No. 36579,36579
• Citation: 157 N.W.2d 156,182 Neb. 692
• Parties: STATE of Nebraska, Appellee, v. George WATSON, Appellant.
• Court: Nebraska Supreme Court

Page 156

157 N.W.2d 156

182 Neb. 692

STATE of Nebraska, Appellee, v. George WATSON, Appellant.

No. 36579.

Supreme Court of Nebraska.

March 8, 1968.

Syllabus by the Court

1. Participation and criminal intent may be inferred from presence, companionship, and conduct before and immediately after the offense.

2. It is the province of the jury to determine the circumstances surrounding, and which shed light upon, the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed.

3. The general rule is that it is prejudicial error to admit incriminating, inculpatory, extrajudicial declarations of a coconspirator made in the absence of or without the knowledge of the accused, after the conspiracy has come to an end through withdrawal or arrest of the participants, or termination of the plan in success or failure, to prove the guilt of one other than the declarants.

4. Statements made by a coconspirator immediately after, or close in time to, the accomplishment of the criminal purpose of the conspiracy, have been held admissible in evidence to characterize the action of the parties as res gestae of the crime charged, even though made out of the presence of the nondeclarant.

5. When an arrest is made without a warrant, it therefore must be based upon probable cause which exists from facts and circumstances within the officers' knowledge or of which they had reasonably trustworthy information which was sufficient to warrant a man of reasonable caution in the belief that an offense has been, or is, being committed.

6. Where there is evidence that several persons participate in a criminal act, the acts and declarations of any one of them, while so participating, are admissible against all of the others.

Richard J. Bruckner, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.

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

WHITE, Chief Justice.

This is a criminal prosecution for possession of burglary tools. Following a jury verdict of guilty, defendant was sentenced to 5 years in the Nebraska Penal and Correctional Complex and also sentenced by the court to an additional consecutive term of 6 months for contempt of court. Defendant appeals.

The evidence, direct and circumstantial, and the reasonable inferences to be drawn therefrom, will first be reviewed as far as pertinent to this appeal.

At 5 o'clock, a.m., May 29, 1966, on the Sunday immediately preceding Memorial Day, police officer John Sobeski and his partner were driving in a police cruiser in an easterly direction in the vicinity of Twenty-fourth and Harney Streets in the downtown business section of Omaha, Nebraska. Motor vehicle and pedestrian traffic were very light at this time. Just east of Twenty-fourth and Harney Streets, and at the west end of the block, is a liquor store. North of the liquor store is a parking lot, and east of the store is a driveway. Immediately beyond the driveway is the Omaha Auto Glass building. The police officers, while driving slowly past the Omaha Auto Glass building, noticed two men walking from the east of the building and to the south. They were about 30 feet distant. They observed the two men walk south out to the front end of the Omaha Auto Glass building, then walk west past the building, and turn and walk north again. The defendant was one of the two men. As the two men turned the corner, both bent down as if pulling something from their clothing. Sobeski saw something in one man's hand, but that man obscured the officer's vision as to the second man. This behavior occurred at the west end of the building. Sobeski parked the cruiser car, and at this time the two suspects were walking quite rapidly to the north. The two men were stopped and searched. The officers found no weapons, but a flashlight was found on the man who had been walking with the defendant. Sobeski then returned to the point where he had seen the two suspects bend over. Here, in a patch of weeds close to the building, the officer found two crowbars and a screwdriver. The tools were lying unrusted in the pushed-over grass, and appeared to have been placed there recently. The defendant and his companion, one Octaviano Perez, were arrested at this point. Sobeski searched the nearby buildings and found no evidence of a burglary. In making this search, Sobeski observed a man sitting in a 1960 Rambler station wagon, reading a newspaper. The station wagon had Missouri license plates. Sobeski asked the man, one Roy Cook, for identification, and observing through the window, he noticed two tools sticking out from the passenger side of the front seat. At Sobeski's request, Cook went with him to the area where the defendant and Perez were being held, and here, Perez said to Cook, 'So they got you, too.' At this point Cook was also placed under arrest. Sobeski returned to the Rambler station wagon and searched it. He found a pry bar and a screwdriver under the passenger side of the front seat and a 30-inch pry bar under a pillow on the back seat. The first two items had been seen by Sobeski from outside the car, before Cook had been arrested. Further search of the spare tire well and glove compartment revealed a pry bar, a tire iron, two screwdrivers, three pairs of pliers, two punches, and a brake-adjusting spoon.

The defendant and his companion Perez were taken to the police station. At the police station Perez was interrogated and gave a Missouri address. He stated that he had come to Omaha with Cook and Watson; that he did not commit burglaries himself but that he planned them for other persons; that he considered Omaha an easy place to burglarize; and that he had come to Omaha to decide which places to 'hit.' Perez had in his possession various gasoline slips dated May 28, 1966, showing charges at stations between Kansas City and Omaha. He had in his possession a key to room 3 of the Eddington Hotel in Omaha, Nebraska, and admitted registering at the hotel on Saturday, May 28, 1966.

Cook was also interrogated and gave a Kansas address. He stated that he knew Perez and the defendant and that the three had traveled from Overland Park, Kansas, on May 27 and 28 to look for work in Omaha. He described his own activities of the previous day and denied that he had been with Perez and the defendant during most of the evening preceding his arrest.

A great deal of other evidence was introduced in this trial, chiefly with reference to the burglary of a certain drugstore which was broken and entered into during the evening of May 28, 1966, which offense the defendant in this case was charged with but found not guilty by the jury. Most of this evidence is irrelevant to the issues herein and will not be reviewed herein.

The first question presented is the sufficiency of the evidence. Participation and criminal intent may be inferred from presence, companionship, and conduct before and after the offense. Miller v. State, 173 Neb. 268, 113 N.W.2d 118; Callies v. State, 157 Neb. 640, 61 N.W.2d 370. The evidence clearly establishes that the two men were walking together, and that in stooping and starting to leave the scene of the dropping of the tools, the two had acted in concert. Clearly a jury could draw a reasonable, if not conclusive, inference that the crowbars and screwdriver, unrusted and lying in the pushed-over grass, were the same ones that were dropped by them when drawn from their clothing. Additionally, Perez was in the possession of a flashlight. Besides the direct evidence on this point, it is apparent from their nature that the tools and instruments found were suitable for use as burglary tools. Besides, the nature and purpose of these tools can be inferred from the fact that two men were walking on an early Sunday morning (the day before Memorial Day) and suddenly stopped to throw away two crowbars and a screwdriver while police officers were 30 feet away in a slowly moving police cruiser.

It is the province of the jury to determine the circumstances surrounding, and which shed light upon, the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed. Rimpley v. State, 169 Neb. 171, 98 N.W.2d 868; Morgan v. State, 51 Neb. 672, 71 N.W. 788; Kitts v. State, 153 Neb. 784, 46 N.W.2d 158; Hoffman v. State, 162 Neb. 806, 77 N.W.2d 592.

The evidence was amply sufficient to sustain the verdict and there is no merit to this contention.

A more serious question is next presented. After the arrest and at the police station, Cook and Perez made certain statements concerning their activities with the defendant on the previous day and prior to the arrest on the morning of May 29, 1966. At the trial, over the objection of the defendant, the police officers were allowed to testify as to these statements by Perez and Cook. This was prejudicial error. The general rule is that it is prejudicial error to admit incriminating, inculpatory, extrajudicial declarations of a coconspirator made in the absence of or without the knowledge of the accused, after the conspiracy has come to an end through withdrawal or arrest of the participants, or termination of the plan in success or failure, to prove the guilt of one other than the declarants. Zediker...