Vanderheiden v. State

• Decision Date: 03 April 1953
• Docket Number: No. 33250,33250
• Citation: 156 Neb. 735,57 N.W.2d 761
• Parties: VANDERHEIDEN v. STATE.
• Court: Nebraska Supreme Court

Page 761

57 N.W.2d 761

156 Neb. 735

VANDERHEIDEN v. STATE.

No. 33250.

Supreme Court of Nebraska.

April 3, 1953.

Syllabus by the Court.

1. A purpose to kill and malice are material elements of murder in the second degree, and under a charge therefor both must be proved beyond a reasonable doubt.

2. One cannot be convicted of a felony upon his own voluntary, unsupported, extra-judicial admission or confession that a crime has been committed.

3. On the other hand, while a voluntary admission or confession tending to prove a crime is insufficient standing alone to prove the corpus delicti, it is competent evidence and may with slight corroborating circumstances be sufficient to warrant a conviction.

4. Circumstances capable of an innocent construction may be interpreted in the light of a defendant's admission or confession, and the fact under investigation be thus given a criminal aspect.

5. It is not the province of this court to resolve conflicts in the evidence in law actions, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are for the jury.

6. In a criminal case, this court will not interfere with a verdict of guilty based upon the evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

7. In a prosecution for second degree murder, the unlawful killing constitutes the principal fact, but the condition of the mind or attendant circumstances determine the degree or grade of the offense, that is, whether it is second degree murder or the lesser degree, manslaughter, and where the evidence and circumstances of the killing are such that different inferences may properly be drawn therefrom as to the degrees, it becomes the duty of the court to submit the different degrees to the jury for them to draw the inferences.

8. The general rule in this state is that a death certificate as such may be admissible under appropriate circumstances for the purpose of impeachment, but it is not a public record and is incompetent when offered as proof of the cause of death in a controversy where the cause of death is a material issue.

9. 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.

10. 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.

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

12. 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.

13. In propounding hypothetical questions to expert witnesses, it is allowable for each party to the controversy to submit such questions upon the theory of the case contended for by the side propounding them. A question is not improper simply because it includes only a part of the facts testified to. If facts are testified to which are not believed to be true, or which are believed to be immaterial to the issue, there is no rule of law requiring that they be included in the question.

14. In propounding a hypothetical question, a party may assume the existence of facts in accordance with his theory, if there is evidence in the record to sustain it, notwithstanding there may be a conflict of evidence on the point raised.

15. The fact that a prisoner does not testify in his own behalf will not operate to his disadvantage; but if he testify, and fail to controvert in any way what has been said by witnesses against him, concerning a fact within his own personal knowledge, it will be taken as an admission that their testimony is true.

16. Instructions are to be considered together, to the end that they may be properly understood, and, when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated on the giving of the same.

17. Where the charge to the jury, considered as a whole, correctly states the law, the verdict will not be reversed merely because a single instruction, when considered separately, is incomplete.

Clarence E. Haley, Hartington, Mark J. Ryan, South Sioux City, for plaintiff in error.

Clarence S. Beck, Atty. Gen., G. Charles Thoene, Asst. Atty. Gen., for defendant in error.

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

CHAPPELL, Justice.

An information charged John J. Vanderheiden, hereinafter called defendant, with second degree murder of his wife. He pleaded not guilty, but upon trial to a jury he was found guilty. Thereafter his motion for new trial was overruled, and the trial court imposed a minimum sentence of 10 years in the State Penitentiary, whereupon defendant prosecuted error to this court.

His brief assigned numerous errors, but some of them were not discussed therein so they will be considered waived and will not be examined by this court. Smith v. State, 153 Neb. 308, 44 N.W.2d 497. Those errors discussed were that the trial court erred: (1) In overruling defendant's motion to dismiss made at conclusion of the State's evidence and renewed at conclusion of all the evidence; (2) in submitting second degree murder to the jury; (3) in excluding, admitting, and refusing to strike certain evidence; (4) in giving instructions Nos. 12 and 17, and failing to instruct upon proximate cause and the effect of intervening cause; (5) that he was prevented from having a fair trial by misconduct of a witness; and (6) that the verdict was contrary to law and instructions of the court. We conclude that the assignments should not be sustained.

Section 28-402, R.R.S.1943, provides: 'Whoever shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree; and upon conviction thereof shall be imprisoned in the penitentiary not less than ten years, or during life.'

The general rule is that: 'A purpose to kill and malice are material elements of murder in the second degree and, under a charge therefor, both must be proved beyond a reasonable doubt.' Whitehead v. State, 115 Neb. 143, 212 N.W. 35. See, also, Runyan v. State, 116 Neb. 191, 216 N.W. 656; Childs v. State, 120 Neb. 310, 232 N.W. 575. The trial court so instructed the jury in the case at bar. There is a qualification of the foregoing rule, but in our view it requires no discussion here.

It is also the rule that one cannot be convicted of a felony upon his own voluntary, unsupported, extra-judicial admission or confession that a crime has been committed. On the other hand, while a voluntary admission or confession tending to prove a crime is insufficient standing alone to prove the corpus delicti, it is competent evidence and may with slight corroborating circumstances be sufficient to warrant a conviction. This court has also held that: 'Circumstances capable of an innocent construction may be interpreted in the light of the defendant's admissions, and the fact under investigation be thus given a criminal aspect.' Egbert v. State, 113 Neb. 790, 205 N.W. 252, 253. See, also, Clark v. State, 151 Neb. 348, 37 N.W.2d 601.

In Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516, 519, this court held that: 'It is not the province of this court to resolve conflicts in the evidence in law actions, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are for the jury.

'In a criminal case, this court will not interfere with a verdict of guilty based upon the evidence unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.' See, also, Phillips v. State, 154 Neb. 790, 49 N.W.2d 698; Kitts v. State, 153 Neb. 784, 46 N.W.2d 158.

Furthermore, this court has held that: 'The credibility of witnesses and the weight of their testimony are for the jury to determine in a criminal case, and the conclusion of the jury cannot be disturbed unless it is clearly wrong.' Fisher v. State, 154 Neb. 166, 47 N.W.2d 349, 351.

In a case such as that at bar, the unlawful killing constitutes the principal fact, but the condition of the mind or attendant circumstances determine the degree or grade of the offense, that is, whether it is second degree murder or the lesser degree, manslaughter, and where the evidence and circumstances of the killing are such that different inferences may properly be drawn therefrom as to the degrees, it becomes the duty of the court to submit the different degrees to the jury for them to draw the inferences. Moore v. State, 148 Neb. 747, 29 N.W.2d 366; Section 29-2027, R.R.S.1943. In that connection, the trial court submitted both second degree murder and manslaughter to the jury for its determination under appropriate instructions respectively relating thereto.

We turn then to the record, bearing in mind the foregoing rules and section 29-2308, R.R.S.1943, as approved and applied in Bassinger v. State, 142 Neb. 93, 5 N.W.2d 222. In that connection the State offered the testimony of: (1) Two physicians who saw or attended defendant's wife after she was injured but while still living, and a neighbor who called them; (2) the sheriff who saw defendant's wife after injury but while still living, took a...