Trimble v. State
| Decision Date | 23 March 1929 |
| Docket Number | 26749 |
| Citation | 224 N.W. 274,118 Neb. 267 |
| Parties | FRED M. TRIMBLE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county: ROBERT M PROUDFIT, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Evidence examined, and held sufficient to sustain the verdict.
An instruction that a reasonable doubt is " such a doubt as, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in such condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge," is not erroneous as excluding a doubt arising from a want of evidence.
The court is not required, on its own motion, to instruct the jury that a reasonable doubt may arise from the want of evidence.
Upon the question of the identification of defendant as the party who committed the crime, it is ordinarily sufficient for the court to instruct the jury that they must be satisfied that the defendant is guilty beyond a reasonable doubt. If defendant desires a more specific instruction as a guide to the jury in the determination of this point, he should request such instruction.
It is not error for the court, in a criminal case where the penalty upon conviction is to be fixed by the court, to instruct the jury that they have nothing to do with the punishment and are not to consider it in arriving at their verdict.
The expression of an opinion by a prospective juror that defendant was guilty, not founded on knowledge of any facts and not amounting to a firm conviction on the part of the juror, is not sufficient of itself to require the granting of a new trial, and it was no abuse of discretion to refuse it.
Affidavits of jurors that during their deliberations a juror said he had made up his mind before the case had ended are incompetent for the purpose of impeaching the verdict.
Where a proper foundation is laid for the introduction of certain evidence, and upon cross-examination facts are elicited tending to show the evidence incompetent, it is within the sound discretion of the court to sustain or overrule a motion to strike it out.
It is not error for the court to fail or refuse to instruct the jury as to the care to be taken in considering the evidence of detectives, when the witnesses are detectives regularly employed by a city, and have no pecuniary interest in the result of the case.
A statute defining robbery was repealed and re-enacted, the only change being in the duration of punishment. Defendant was charged with that crime committed after the repeal. The complaint did not contain the section under which it was drawn, but the court in its instruction inadvertently referred to the section repealed. The definition and elements of the crime were the same in both sections. Held, defendant not prejudiced by the error.
Error to District Court, Richardson County; Proudfit, Judge.
Fred M. Trimble was convicted of robbery, and he brings error. Affirmed.
John C. Mullen and Lloyd Dort, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
Heard before ROSE, DEAN, GOOD, THOMPSON and DAY, JJ, and REDICK and SHEPHERD, District Judges.
Defendant was convicted of the crime of robbery in the district court for Richardson county and sentenced to the penitentiary for a term of ten years, and presents his petition in error to this court, alleging a number of errors in instructions, the refusal of the court to grant a new trial by reason of misconduct of two jurors, that the evidence is not sufficient to sustain the conviction, failure of the court to instruct the jury as to the weight to be given to testimony of detectives, failure to instruct upon the identification of the defendant, and an error in stating incorrectly in one of the instructions the section of the statute upon which the information was founded. We will discuss these assignments in our own order.
The prosecuting witness, Joseph Kunhart, and three members of his family, who were present, testified without contradiction as to the manner in which the robbery was committed, and the principal dispute is as to whether the defendant was the guilty party. The defendant was positively identified by the four members of the Kunhart family, who testified that they had known him for a number of years, had heard him speak in person and over the telephone a number of times, and recognized him by his voice and his crippled hand. They testified that he was accompanied by his son, Durban Trimble, and detailed with great particularity the various events leading to the robbery. The defendant had lived for many years on a farm within three and one-half miles of the Kunhart place. The robbers were masked so that their faces could not be recognized, but their identification was positive, and unshaken upon cross-examination.
In addition to the denial of the defendant, the defense was based upon an alibi consisting of the evidence of a number of witnesses testifying by deposition tending to show that on the evening of the 20th day of August, 1927, the date of the robbery, the defendant was in the city of St. Joseph, Missouri, and stopping at the Metropole Hotel. To meet this defense the state produced a witness who testified that the defendant was seen in the city of Humboldt early in the evening of August 20, and the testimony of two detectives from St. Joseph attacking the reputation for truth and veracity of nearly all of the alibi witnesses.
It thus appears that there were disputed questions of fact, both as to the charge and the defense, which were proper to be submitted to the jury. It would prolong this opinion to unnecessary length to set out the evidence in detail, and it must suffice to say that the entire record has been read with great care, and we have reached the conclusion that the jury were warranted in finding the defendant guilty beyond a reasonable doubt. The evidence of guilt is not as convincing as could be desired, but depends for its acceptance upon the credibility of the witnesses and the weight to which their evidence is entitled. These are questions for the sole determination of the jury, and we are unable to say that their conclusion is incorrect, much less that it is clearly wrong. It may be remarked in passing that Durban Trimble, defendant's son, was not called as a witness, nor his absence accounted for. This fact, in all probability, had considerable influence with the jury.
The next assignment to be considered is with reference to instruction No. 4, on the subject of reasonable doubt, which reads as follows:
The principal objection to this instruction is that it fails to state that a reasonable doubt may arise from a lack of evidence in the case, and 16 C. J. 997, sec. 2411, is cited, as follows:
We think the paragraph quoted states the law correctly, but is inapplicable to the instruction complained of. It is not incumbent upon the court in every case to instruct the jury that a reasonable doubt may arise from want of evidence in the case, though, if requested so to do, such instruction should be given. The cases hold that, where the court instructs the jury upon what circumstances will give rise to a reasonable doubt, it is error to say that such doubt must be one suggested by or arising out of the evidence, because it excludes all reasonable doubt that might arise from the lack or want of evidence. Instruction No. 4 did not present that proposition. Its language is that a reasonable doubt is "such a doubt as, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in such condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." This does not exclude a reasonable doubt arising from a want of evidence in the case, but rather suggests that a lack of evidence sufficient to convince the jurors of the truth of the charge is sufficient to raise a reasonable doubt. In State v....
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Trimble v. State
...118 Neb. 267224 N.W. 274TRIMBLEv.STATE.No. 26749.Supreme Court of Nebraska.March 23, Syllabus by the Court. Evidence examined, and held sufficient to sustain the verdict. An instruction that a reasonable doubt is “such a doubt as, after the entire comparison and consideration of all the evi......