Sundahl v. State

• Decision Date: 05 July 1951
• Docket Number: No. 33008,33008
• Citation: 48 N.W.2d 689,154 Neb. 550
• Parties: SUNDAHL v. STATE.
• Court: Nebraska Supreme Court

Page 689

48 N.W.2d 689

154 Neb. 550

SUNDAHL v. STATE.

No. 33008.

Supreme Court of Nebraska.

July 5, 1951.

Syllabus by the Court

1. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of such discretion is disclosed.

2. An application for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be held erroneous, unless an abuse of discretion is disclosed by the record.

3. It is no abuse of discretion for the trial court to refuse defendant a continuance unless it clearly appears that defendant suffered prejudice.

4. Section 29-2022, R.R.S.1943, does not require an admonition each time the jury is permitted to separate.

5. Although it is better to admonish in the language of section 29-2022, R.R.S.1943, substantial compliance therewith is sufficient.

6. A photograph proved to be a true representation of the person, place, or thing which it purports to represent, is competent evidence of anything of which it is competent and relevant for a witness to give a verbal description.

7. Where a photograph illustrates or makes clear some controverted issue in the case, a proper foundation having otherwise been laid for its reception in evidence, it may properly be received, even though it may present a gruesome spectacle.

8. Photographs of the person or body of a deceased, proper foundation having been laid, may ordinarily be received in evidence for purposes of identification, or to show the condition of the body, or to indicate the nature or extent of wounds or injuries thereon.

9. Pardon or parole relates to something that may happen after conviction and to action by the executive department.

10. The jury's duty in a case involving murder in the first degree is to determine the question of guilt or innocence and, if it finds a verdict of guilty, then to fix the penalty at either death or imprisonment for life. That decision should not rest upon whether parole is easy or difficult to secure.

11. Section 28-401, R.R.S.1943, does not prescribe or authorize the court to prescribe any rule defining or circumscribing the exercise of the right to determine whether the penalty shall be death or imprisonment for life. The statute commits the whole matter to the judgment and conscience of the jury.

12. In the trial of a criminal action, where spectators applaud and counsel for defendant proceed with the trial, without objection and without request for a mistrial, and take chances of a favorable verdict, they will not be heard to complain of such fact, for the first time, on motion for a new trial.

13. Opportunity for prejudice or disqualification of jurors is not sufficient to raise a presumption that they exist.

14. Where a defendant, with knowledge of the publication of a newspaper article before trial which he deems prejudicial, elects not to interrogate prospective jurors as to whether or not they have read the article, and it devolops that one juror had read the article and others did so during the trial, and the question is not raised until on motion for a new trial, held that the defendant has waived the prejudice, if any.

15. In such case a party is not permitted, without objection, to take the chances of a favorable result and then, if disappointed, for the first time complain.

16. Sections 25-1623 and 29-2006, R.R.S.1943, furnish a defendant ample opportunity to establish whether or not prospective jurors have been prejudiced by reading newspaper accounts and statements. The reading of such matters by prospective jurors is not prejudicial per se.

17. Whether or not a motion for a new trial in a criminal case, based on alleged misconduct of jurors, should be sustained rests in the sound discretion of the trial court, and its ruling on such motion will not be disturbed unless an abuse of discretion is shown.

18. The district court, in trying the issues presented by the motion for a new trial, had the right, if it was not obliged, to indulge the presumption that the jurors had been mindful of the oaths which they took, and had found the verdict which they had solely upon the evidence introduced on the trial of the case. The law supplied, by presumption, the evidence on the one hand that the jurors had obeyed their oaths.

19. By the provisions of section 28-401, R.R.S.1943, the jurors who hear the testimony, observe the witnesses, weigh the evidence, and determine guilt have the primary duty to fix the penalty at either death or imprisonment for life.

20. By the provisions of section 29-2308, R.R.S.1943, the Supreme Court has authority to reduce the sentence in a criminal case and to render such sentence as in its opinion is warranted by the evidence.

21. The act of reducing the sentence and rendering a new one warranted by the evidence is in no sense a commutation or the exercise of clemency.

22. In determining the question as to whether or not the sentence shall be reduced, the Supreme Court has no right to be deterred from discharging its duty through considerations of mercy or sympathy.

23. In all cases considered under section 29-2308, R.R.S.1943, a substantial reason or reasons warranted by the evidence must be found to cause either an affirmance or reduction of the sentence.

24. The decision as to whether or not the death sentence shall be reduced to life imprisonment rests upon the facts and circumstances of each case.

25. Where a defendant, after a fair trial, has been convicted of murder in the first degree and the jury, by its verdict, has imposed the death penalty, and the court has passed sentence in conformity with the verdict, this court will not interfere with such sentence on the ground that it is excessive, in the absence of any mitigating circumstances.

26. Whatever repugnance the individual may feel toward capital punishment must be put aside in obedience to the law of the state and in deference to the verdict of the jury.

27. In determining whether or not a sentence of death is to be reduced to life imprisonment, mental abnormality of the convicted person is to be considered but mental abnormality is not necessarily a controlling factor requiring the reduction of the sentence.

28. The Legislature has determined the public policy of this state as to the penalty for murder in the first degree. It is the duty of the courts to enforce the law.

29. The sentence of death is found to be warranted by the evidence and no substantial legal reason is found for reducing it to life imprisonment.

Louis Lightner, Wilbur L. Johnson, Columbus, for plaintiff in error.

C. S. Beck, Atty. Gen., Clarence A. H. Meyer, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

Plaintiff in error, by information in two counts, was charged with murder in the first degree. The first count was that he killed a 16-year-old girl in the perpetration of or an attempt to perpetrate a rape. The second count was that he purposely and of deliberate and premeditated malice killed the girl. To these counts he pleaded not guilty and not guilty by reason of insanity or mental derangement. Trial was had. The jury found the plaintiff in error guilty of murder in the first degree on count one and fixed his punishment at death. Motion for a new trial was made and overruled, and plaintiff in error was sentenced. He brings the matter here on petition in error. We affirm the judgment of the trial court.

The plaintiff in error will be hereinafter referred to as the defendant. The girl whom the defendant is accused of murdering will be referred to as deceased.

The crime was committed on the 27th day of August 1950, near Columbus, Nebraska.

We summarize the evidence as it came from the lips of witnesses, from two written confessions of the defendant, and from his own testimony at the trial.

At the time of her death the deceased was 16 years, 8 months old. Her home was in a town near Columbus. She was a normal, intelligent girl. She had finished the eleventh grade in school and expected to go to school the following year. She went to Columbus, and secured employment in a drive-in cafe where she worked in the late afternoon and well into the night as a waitress for about a month preceding her death. She roomed with a lady in a home. Sometimes she went to her own home on the day of each week that she was not working.

The defendant was born in June 1930. His parents lived in Nebraska. At birth he had a cyst on his neck. This was operated on and removed when he was 4 years old and he was again operated on for the same thing in 1949. He had the usual children's diseases. He went to school, completing the eighth grade. He lost interest in school when he was in the ninth grade. In 1946, he enlisted in the U. S. Marines. There is reference to service also in the Army. He was discharged after 18 months' service in the Marine Corps. While in the service and at the age of 17, he was married on October 17, 1947. Two children were born to the marriage. He received a discharge and came to Nebraska and Norfolk in June 1949. His parents then resided there.

Defendant worked at odd jobs. He was unable or unwilling to keep permanent employment. The family lived in an apartment, then a house, and finally, in the summer of 1950, in a garage at the home of the parents. This was because of limited means. The marriage was a happy one until 1950, when there is evidence of discord between defendant and his wife. Beginning about June 1, 1950, defendant was away from home most of the time, working at odd jobs, and on occasion sleeping in his car wherever he happened to be. During this period his activities centered in and around Columbus, Nebraska, where he established friendships with two other young men. He was an agreeable person to know.

During these months in 19...