Witt v. State

• Decision Date: 07 October 1932
• Docket Number: 28282
• Citation: Witt v. State, 123 Neb. 799, 244 N.W. 395 (Neb. 1932)
• Parties: CLARENCE WITT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

244 N.W. 395

123 Neb. 799

CLARENCE WITT v. STATE OF NEBRASKA

No. 28282

Supreme Court of Nebraska

October 7, 1932

ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The trial court is vested with a sound discretion in determining the number of character witnesses that a defendant in a criminal action may call. There is no abuse of such discretion in limiting the number to six.

2. The credibility of a witness may not be impeached by proof that she has been committed to the state training school for girls.

3. An instruction in a criminal action, which informs the jury that one may be convinced of the truth of a thing beyond all reasonable doubt, and yet be fully aware that possibly it is not so, and that absolute or mathematical certainty is not requisite to proof beyond a reasonable doubt, is a correct statement of the law.

4. In a criminal action, an instruction which informs the jury that they have nothing to do with the punishment of the defendant and that they have no right to take into consideration what punishment he might or might not receive, in event of his conviction, is proper in the cases where the punishment is left to the trial court.

5. It is not error to refuse instructions correctly stating the law, where the substance of such instructions has been given by the court on its own motion.

6. An instruction, directing the jury's attention to the evidence of a particular witness and cautioning them to scrutinize his evidence with caution, is properly refused.

7. Evidence examined, and held to show sufficient corroboration of the prosecutrix, and that the evidence is sufficient to sustain the verdict of the jury.

8. In a criminal action, the credibility of witnesses and the weight to be given to the evidence of the respective witnesses are questions solely for the jury.

Error to District Court, Richardson County; Raper, Judge.

Clarence Witt was convicted of rape, and he brings error.

Judgment affirmed.

John C. Mullen, for plaintiff in error.

C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.

Heard before ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOOD, J.

Plaintiff in error, hereinafter designated defendant, was convicted of the offense of rape, committed upon a 13-year-old female child, and was sentenced to a term of three years' imprisonment in the state reformatory for male prisoners. He brings the record of his conviction to this court for review.

While a great many errors are assigned, we shall consider only those relied on in oral argument or in the briefs.

Defendant put in issue his reputation as a law-abiding citizen; called and examined six witnesses to sustain his reputation in this respect, and, by other witnesses, offered evidence of the same tenor. The offer was excluded. Of this ruling defendant complains. The evidence upon this point was not controverted by the prosecution.

It is a general rule that the number of witnesses that may be called upon a question of this kind is committed to the sound discretion of the trial court. Certainly, there was no abuse of discretion in limiting the number of character witnesses to six.

Defendant complains of a ruling of the trial court in excluding from the evidence court records showing that two of state's witnesses had been committed to the state girls' training school at Geneva. No authorities are cited, and we know of none that would sustain defendant's contention. The proffered evidence was not relevant to any issue in the case. It neither tended to prove nor to disprove any issue. We think it was properly excluded.

Complaint is made of the ninth instruction, given by the court, wherein it defined reasonable doubt. The instruction, among other things, told the jury: "One may be convinced of the truth of a thing beyond all reasonable doubt, and yet be fully aware that possibly it may not be so," and "absolute or mathematical certainty is not requisite to proof beyond reasonable doubt."

The first of the propositions needs but a simple illustration to show the fallacy of the criticism. Suppose the identity of a person is in question, as frequently occurs in criminal prosecutions, and that a half-dozen witnesses testify positively to the person's identity. It is a possibility that each may be mistaken; yet the evidence may be sufficient to convince the jury beyond any reasonable doubt. Criticism in this respect is devoid of merit. As to the second proposition criticized, it may be said that this court approved an instruction that contained almost the identical language. St. Louis v. State, 8 Neb. 405, 1 N.W. 371.

Again the instruction is assailed because it did not inform the jury that a reasonable doubt might arise from the want or lack of evidence. This criticism is disposed of by the holding of this court in Trimble v. State, 118 Neb. 267, 224 N.W. 274, wherein it was held: "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...