Welton v. State
| Decision Date | 03 February 1961 |
| Docket Number | No. 34810,34810 |
| Parties | Morgan D. WELTON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. It is permissible for a party to ask his own witness whether he made prior statements inconsistent with his testimony and such an inquiry is not objectionable, although the incidental effect of it is to impeach the witness. Such an examination is a proper one for the purpose of showing that the testimony of the witness operated as a surprise, or to test his recollection, refresh his memory, induce him to change his testimony, draw out an explanation of his apparent inconsistency, or show the circumstances which induced the party to call him, and that such party had been placed at a disadvantage by unexpected evidence.
2. Where the trial court has intructed generally as to the issues of a criminal prosecution, error cannot be predicated on its failure to instruct as to a particular phase of the case, where no proper instruction has been requested by the party complaining.
Tedd C. Huston, Broken Bow, for plaintiff in error.
Clarence A. H. Meyer, Atty. Gen., Gerald S. Vitamvas, Deputy Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, SPENCER and BOSLAUGH, JJ.
The plaintiff in error, who will be referred to herein as the defendant, was charged with contributing to the delinquency of Marjorie Davenport, a child under 18 years of age, in violation of section 28-477, R.R.S.1943. The complaint was originally filed in the county court of Garfield County, Nebraska. Upon a plea of guilty, the defendant was sentenced to imprisonment in the county jail and to pay a fine and costs.
The defendant appealed to the district court for Garfield County, Nebraska, he pleaded not guilty, and upon trial to a jury was found guilty. His motion for new trial was overruled and he was sentenced to imprisonment in the county jail for 45 days and fined $200 and costs. The defendant then filed his petition in error in this court.
The girl named in the complaint will be referred to herein as the complaining witness.
Of the errors assigned, only those which have been discussed with be considered. Revised Rules of the Supreme Court, rule 8, subd. a, par. 2(4); Linder v. State, 156 Neb. 504, 56 N.W.2d 734.
The defendant has not challenged the sufficiency of the evidence to support his conviction. Therefore, it will not be necessary to include a detailed review of the evidence in this opinion.
The defendant complains that he was prejudiced because the county attorney questioned the complaining witness in reference to a conversation she had with a state safety patrolman after the offense had been committed, and that the trial court erred in permitting the county attorney to read from a statement made to the patrolman by the complaining witness.
The defendant relies upon Masourides v. State, 86 Neb. 105, 125 N.W. 132, and Erdman v. State, 90 Neb. 642, 134 N.W. 258, Ann.Cas.1913B 577.
In Penhansky v. Drake Realty Const. Co., 109 Neb. 120, 190 N.W. 265, the court set aside the rule as to contradiction of witnesses stated in Masourides v. State, supra. In Penhansky v. Drake Realty Const. Co., supra, the plaintiff called the driver of the defendant's truck as her own witness. The truck driver testified in contradiction to statements which he had made to the plaintiff's counsel before the trial. The court held that the plaintiff was entitled to show the prior contradictory statements of the witness and set aside the rule as to contradiction of witnesses stated in Masourides v. State, supra
The following rule is applicable here: It is always...
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...R. Collin Mangrum, Mangrum on Nebraska Evidence § 27–607 at 491 (2014). See, also, State v. Fronning, supra note 20; Welton v. State, 171 Neb. 643, 107 N.W.2d 394 (1961).23 State v. Marco, supra note 19.24 Id.25 Id.26 Neb.Rev.Stat. § 27–801(3) (Reissue 2008); State v. Marco, supra note 19.2......
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...R. Collin Mangrum, Mangrum on Nebraska Evidence § 27–607 at 491 (2014). See, also, State v. Fronning, supra note 24; Welton v. State, 171 Neb. 643, 107 N.W.2d 394 (1961).27 State v. Marco, supra note 23.28 Id.29 Id.30 Neb.Rev.Stat. § 27–801(3) (Reissue 2008); State v. Marco, supra note 23.3......
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