State v. Wilson
| Citation | 174 Neb. 86,115 N.W.2d 794 |
| Decision Date | 22 June 1962 |
| Docket Number | 35218,Nos. 35217,s. 35217 |
| Parties | STATE of Nebraska, Appellee, v. Louis WILSON, Appellant. STATE of Nebraska, Appellee, v. Homer Charles SMITH, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. In a criminal action the Supreme Court will not interfere with a verdict of guilty based on conflicting evidence unless the evidence is so lacking in probative force that as a matter of law it is insufficient to support a finding of guilt beyond a reasonable doubt.
2. The testimony of a single witness which identifies a defendant as a participant in a robbery is sufficient to sustain a finding of guilt if the witness had a reasonable opportunity to observe the defendant.
3. Evidence which does not tend to impeach any witness on a material point and which is not substantive proof of any fact relative to the issue is properly excluded.
Edward T. Hayes, Omaha, for appellant Wilson.
W. D. O'Shaughnessy, Omaha, for appellant Smith.
Clarence A. H. Meyer, Atty. Gen., H. G. Hamilton, Asst. Atty. Gen., Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.
Separate informations were filed in the district court charging each of the defendants with robbery under section 28-414, R.R.S.1943. Upon the motion of the county attorney, the cases were consolidated for trial pursuant to subsection (3) of section 29-2002, R.S.Supp., 1961. The jury returned separate verdicts of guilty against each defendant. The defendants filed separate motions for new trial which were overruled and each defendant has appealed from the judgment of the district court. The cases were docketed separately in this court but, by stipulation, they were consolidated for briefing and argument. For that reason they will be disposed of by one opinion.
The principal assignment of error relates to the sufficiency of the evidence to sustain the conviction of each defendant. There was evidence from which the jury could have found that a robbery occurred in front of the First & Last Chance Cafe, also known as Johnny's Blue Room, in Omaha, Nebraska, between 3 and 4 a. m., on June 24, 1961.
The defendant Smith was identified as being at the scene of the crime and pointing a gun at William Roundtree, the complaining witness, by the testimony of Janie Williamson, Nathaniel Johnson, and Roundtree. Janie Williamson testified that the defendant Smith was holding a pistol in his hand and when she stepped in front of the complaining witness, Smith said, 'Don't get in the way or I will burn you,' or 'If you don't move I will burn you.'
Nathaniel Johnson, also known as 'Lightning,' is the proprietor of the Seventh Ward Improvement Club which is located at 5211 South Twenty-eighth Street in Omaha, Nebraska, and just across the alley north of the First & Last Chance Cafe. Johnson testified that he saw the defendant Smith point a gun at Roundtree.
Roundtree testified that he stopped his automobile in front of the First & Last Chance Cafe; that as he got out of his car, five men came out of the alley between the cafe and the club; that the defendant Smith, also known as 'Peaches' and 'Peachy,' pointed a gun at him and said, 'You better not do nothing or I will shoort'; and that while Smith pointed the gun at him, a second man removed a billfold and some money from his pockets and struck him.
This evidence is sufficient to sustain the conviction of the defendant Smith. There was evidence to the contrary but it merely presented a question of fact for the jury. It is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. Pulliam v. State, 167 Neb. 614, 94 N.W.2d 51. In a criminal action this court will not interfere with a verdict of guilty based upon conflicting evidence unless the evidence is so lacking in probative force that as a matter of law it is insufficient to...
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State v. Burton
...in directing a verdict of not guilty.' Wanzer v. State, 41 Neb. 238, 59 N.W. 909. See, also, Onstott v. State, supra; State v. Wilson, 174 Neb. 86, 115 N.W.2d 794. The defendant in his motion for new trial predicated error on the part of the trial court in refusing to give certain instructi......
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State v. Brown, 35220
...province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. State v. Wilson, 174 Neb. 86, 115 N.W.2d 794. The defendants and Mary Brown were charged with robbery in one information. Several days before the trial the defendants fi......
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State v. Bittner
...of rebuttal; nor can these facts be shown for the purpose of impeachment by evidence as to specific acts or instances.' In State v. Wilson, 174 Neb. 86, 115 N.W.2d 794, it was held: 'Evidence which does not tend to impeach any witness on a material point and which is not substantive proof o......
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State v. Williams, 84-352
...of any fact relative to the issue is properly excluded. See, State v. Claire, 193 Neb. 341, 227 N.W.2d 15 (1975); State v. Wilson, 174 Neb. 86, 115 N.W.2d 794 (1962). The test of whether a fact inquired of in cross-examination in criminal proceedings is collateral is, Would the cross-examin......