Tvrz v. State
| Decision Date | 16 July 1951 |
| Docket Number | No. 32970,32970 |
| Citation | 154 Neb. 641,48 N.W.2d 761 |
| Parties | TVRZ v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A medical expert may properly give his opinion on the question of whether or not a defendant in a criminal action knew the difference between right and wrong with reference to the act committed, with his examination and the results thereof as the foundation therefor.
2. The opinion of a medical expert may rest upon any one or more of three bases, namely (1) acquaintance with the party under investigation, (2) medical examination made by the expert, or (3) a hypothetical case stated to the expert in court.
3. Where a medical expert is called upon to render an opinion based upon a hypothetical case stated in court the question must require the expert to assume the truth of the case stated.
4. Where a medical expert is called upon to render an opinion based solely on the observation of a witness while testifying in open court such witness is not required to assume the truth of the statements made by the witness while testifying.
5. The admission of incompetent evidence is not prejudical where the same facts are established by the complaining party himself, and this is true whether he established them before or subsequent to the admission of the incompetent evidence.
6. Where voluntary intoxication is interposed as a defense in a criminal case involving deliberation, premeditation, and the formation of intent, the following contained in an instruction given by the court is proper: '* * * but excessive intoxication by which a person is wholly deprived of reason, if such intoxication was not indulged in to commit crime, may prevent deliberation, premeditation or the formation of a criminal intent, * * *.'
7. Where the trial court having on its own motion instructed the jury as to the defense in a criminal case, it is not required to repeat in another form any such instruction or instructions at the request of the defendant.
8. Where purported statements of a defendant in a criminal case are testified to by witnesses and they are clear and unequivocal and not subject to misunderstanding and where such statements are not material proof of the crime charged, it is not error to refuse to give an instruction that such evidence should be received with caution because of unintentional alteration of words or expressions by the witness.
9. In a criminal case no presumption flows from the use of a deadly weapon where proof of guilt including the element of malice is dependent upon the evidence given by eye-witnesses who testify fully to the facts and circumstances attendant upon the act committed.
John E. Mekota, Crete, for plaintiff in error.
Clarence S. Beck, Atty. Gen., William T. Gleeson, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is a criminal action which was instituted by the filing of an information in the district court for Saline County, Nebraska, charging Clarence Tvrz with murder in the first degree. The action was prosecuted in the name of the State of Nebraska, plaintiff, against Clarence Tvrz, defendant. In the information it was charged that the defendant killed Helen McElroy.
The defendant was tried to a jury. The jury found him guilty as charged and fixed the penalty at life in the State Penitentiary. A motion for new trial was duly filed which was overruled, whereupon sentence was imposed in conformity with the verdict of the jury. The defendant has brought the action of the district court in overruling the motion for new trial and in imposing sentence to this court for review by petition in error. For the purposes of this opinion the defendant in error, the State of Nebraska, will be referred to as the State and the plaintiff in error, Clarence Tvrz, will be referred to as the defendant.
The brief of defendant contains numerous assignments of error which he contends are grounds for a reversal of the action of the district court. Before adverting to them it appears well to set forth certain facts conclusively appearing as background for the consideration of the assignments.
On April 19, 1950, at about 10:30 p. m., in a tavern at Wilber, Nebraska, the defendant shot and killed one Helen McElroy and one Ivan McElroy. The prosecution here is for the killing of Helen McElroy. There is no evidence of cause, excuse, or provocation for the act except an inference from the testimony of witnesses that the defendant became angered when he saw Helen McElroy talking to men other than her husband and himself. The defendant gave evidence that this annoyed him but he gave other evidence that he did not regard this as ground for the act proved against him. It is to be noted here that over a period of several years a continuing illicit relationship had existed between the defendant and Helen McElroy. This relationship appears in great detail by the admissions in the testimony of the defendant.
On arrignment the defendant pleaded not guilty. On the trial however no effort was made to dispute the fact that Helen McElroy came to her death at the hands of the defendant. The substantial defense interposed under the plea was that of insanity, so-called, or more property under law that the defendant did not know the difference between right and wrong with reference to the act committed.
The evidentiary effort in this connection was to show that he was incapable of knowledge of the act and that he had no knowledge whatever thereof and was without any intent or capability of an intent to commit it. In pursuance of the effort the defendant gave evidence of consumption of large quantities of intoxicating liquor from about 2 p. m. to about 8:30 p. m. and particularly between 6 p. m. and 8:30 p. m. and a complete absence of knowledge of anything that occurred from about 8:30 p. m. until more than an hour after Helen McElroy was killed. In addition to this, evidence was adduced indicating mental instability in the immediate family of the defendant. There was none of mental instability of the defendant except that claimed to have been induced by intoxicating liquor on the night of the killing and other indefinite occasions which were not described.
To support the theory that the defendant did not know the difference between right and wrong with reference to the act committed and that he was incapable of maintaining the intent necessary to the commission of the crime of murder a psychiatrist was called as a witness.
In response to a hypothetical question containing the family history of the defendant, his educational and environmental background, his general habits and conduct, his conduct with Helen McElroy and Ivan McElroy, his conduct and actions on the evening of April 19, 1950, before and after the shooting, and experiences in training and in action in the second World War, all as disclosed by the evidence, this psychiatrist gave it as his opinion that at the time of the killing the defendant did not know the difference between right and wrong with reference to the act and that he was incapable of maintaining an intent to commit the act.
In rebuttal the State called as witnesses two psychiatrists, namely Dr. F. L. Spradling and Dr. Juul C. Nielsen. Dr. Spradling was allowed, over objection, to give it as his opinion that the defendant did know the difference between right and wrong with reference to the act of killing Helen McElroy. The defendant urges that this was error. The ground of the alleged error is that no sufficient foundation was laid for the opinion. This assignment appears as No. 1 in the brief of defendant.
As shown by the evidence, Dr. Spradling was duly qualified by education and experience as a specialist in the field of nervous and mental diseases. In September or October, 1950, he examined the defendant for almost three hours. It was on the basis of that examination that he was allowed to give his opinion. This foundation, the defendant urges, was insufficient upon which to allow him to give an opinion.
He gave as his reasons for the opinion the following:
The contention of the defendant, under previous holding of this court, is without merit. In Torske v. State, 123 Neb. 161, 242 N.W. 408, a case wherein the question here involved was exhaustively considered, it was held that a medical expert may properly give his opinion on the question of whether or not a defendant knew the difference between right and wrong with reference to a particular act based upon an examination and the results thereof. The only stated limitation upon the propriety is that such witness shall be required either before or after giving his opinion to give the reasons therefor.
In the case at bar the witness described the examination made, gave his opinion, and thereafter gave his reasons therefor strictly in conformity with the pronouncement in Torske v. State, supra.
Dr. Nielsen, like Dr. Spradling, was shown to be an expert in nervous and mental diseases. He did not examine directly the defendant. He sat in the courtroom and heard all of the testimony given by the defendant throughout and observed his demeanor on the witness stand. The examination of the defendant in chief, the cross-examination, and the re-examination were lengthy and exhaustive. Based on this the witness was allowed to give it as his opinion that the defendant knew the difference between right and wrong with reference to the act committed.
The defendant by assignment of error No. 3 complains that the question which elicited the...
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...231 (1987); State v. Brown, 174 Neb. 393, 118 N.W.2d 332 (1962); Thompson v. State, 159 Neb. 685, 68 N.W.2d 267 (1955); Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761 (1951). Similarly, this court has held that evidence of intoxication may be admissible as a circumstance tending to negative the......
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...Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005).82 State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).83 See id. , citing Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761 (1951).84 See, State v. Bevins, 187 Neb. 785, 194 N.W.2d 181 (1972) ; State v. Brown, 174 Neb. 393, 118 N.W.2d 332 (1962).85 Abdu......
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