Williams v. State

• Decision Date: 23 May 1925
• Docket Number: 24424
• Citation: 204 N.W. 64,113 Neb. 606
• Parties: ROBERT E. WILLIAMS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

204 N.W. 64

113 Neb. 606

ROBERT E. WILLIAMS v. STATE OF NEBRASKA

No. 24424

Supreme Court of Nebraska

May 23, 1925

ERROR to the district court for Nance county: FREDERICK W. BUTTON JUDGE.Affirmed.

AFFIRMED.

McKenzie Lower & Sheehan, for plaintiff in error.

O. S Spillman, Attorney General, and Lee Basye, contra.

Heard before ROSE, DEAN, GOOD and EVANS, JJ., REDICK and SHEPHERD, District Judges.

OPINION

SHEPHERD, District Judge.

Burglary was charged, and incidental larceny.The defendantRobert E. Williams(plaintiff in error here) was convicted, and brings the case to this court, assigning and arguing five errors which may be briefly designated as follows: Misconduct on the part of two of the jurors; misconduct of the assistant prosecuting attorney; erroneous rulings on newly discovered evidence; the erroneous giving of instructions 3 and 3 1/2; failure to instruct on larceny, the crime of lesser degree involved in the burglary charge.

The affidavits in regard to misconduct on the part of the jurymen were not made a part of the bill of exceptions, but appear in the transcript.The affidavit of one Burgess states that he heard the juryman Nisbet say at the former trial of the case that the defendant was as guilty as he could be and that he would not fool with him a minute.One Sprague says in an affidavit that prior to the trial in which said Nisbet became a juror the latter stated to him that he believed the defendant was guilty, and that if he had been on the jury he would have voted for a conviction.And one Barnett said in an affidavit that he heard the juryman Pearson state during the course of the trial that the Omaha crowd would not get off as easy this time as they did before.All of these affidavits were flatly denied in affidavits made by the said jurors.It appears that the said Barnett, in his affidavit, stated also that during the trial he heard attorney Beebe, who was assisting the prosecution, say in the presence of the said Pearson that certain receipts or statements used in evidence had been tampered with and changed.Both Beebe and Pearson, in separate affidavits made by them, directly and positively deny this.

The trial court decided adversely to the defendant and refused a new trial on account of such alleged misconduct of the jurors and the attorney.

In two of the Nebraska cases cited and relied upon by the plaintiff in error, the fact of the misconduct upon which the court acted was undenied, and in the third of such cases a portion of the facts constituting such misconduct was not denied.In the latter case, Edney v. Baum, 44 Neb. 294, 62 N.W. 461, Commissioner Irvine used this language: "Almost every affidavit as to misconduct is met by flat contradiction.As to these matters, therefore, we would not disturb the finding of the district court in overruling the motion for new trial.* * * A few facts are, however, established by uncontradicted evidence, and we think require that the judgment be reversed."It is obvious that in the case at bar, where all the charges are specific and are flatly denied, and where the evidence seems to be quite evenly balanced, the situation is entirely different from that in the cases relied upon by the plaintiff in error.Upon the authority of the Edney case, as indicated by the language of Commissioner Irvine, the ruling of the trial court in this is fully sustained.

In the much later case of Thrasher v. State, 92 Neb. 110, 138 N.W. 120, the court said, respecting a charge of misconduct on the part of a bailiff in charge of a trial jury, that where the issue is submitted upon conflicting affidavits the decision of the district court thereon will not be reversed, unless found to be clearly wrong.Regarding the charging affidavits, it used this language: "But they are contradicted by other affidavits, thus presenting a question of fact, and we cannot say that the decision of the court thereon was wrong."We think, upon due consideration of the affidavits in the case at bar, that the district court was justified in concluding that the charge of misconduct on the part of the jurors and the attorney was wrongfully or mistakenly made.A presumption of regularity attaches to the proceedings and judgments in a criminal case, and where misconduct on the part of a juror or attorney is alleged on motion for a new trial, and the question is submitted upon affidavits and decided by the trial court, the ruling of the trial court will not be set aside by this court, unless it can say upon examination of said affidavits that such ruling was clearly wrong.

The contention of the plaintiff in error that a new trial should have been granted because of newly discovered evidence is without merit.An affidavit was filed by one who did not testify upon the trial, reciting that on the morning of the burglary, which occurred in Fullerton, Nebraska, he met the cars which the evidence indicates were used by the plaintiff in error and his accomplices in leaving town, and that neither of said cars was driven by the plaintiff in error.Inasmuch as the affidavit discloses that, in order to avoid collision with said cars, which were being driven at a high rate of speed, affiant was obliged to turn over the curb, it occurs to the court that his opportunity for accurate identification was exceedingly scant.In addition to this while it would consume too much space to quote or to state the testimony relative to the matter, the court is convinced by a careful reading of the evidence that the testimony of such affiant would have been largely in the nature of impeaching and cumulative evidence, and that it is exceedingly doubtful that it would have changed the verdict rendered.Further than this, an omission was made in laying the foundation for urging a new trial upon the ground in question.Only one of the two attorneys for defendant made affidavit that he was without knowledge of the...