Ruzicka v. State ( 1940 )

Carter, J.

The plaintiff in error, Mary Ruzicka, was convicted in the district court for Fillmore county of stealing $2,711 in money from Mike and Jennie Kubicek, and was sentenced to serve three to five years in the reformatory for women. From this conviction and sentence the defendant below prosecutes error and presents to this court a record of her conviction for review.

The record shows that on August 16, 1938, Dorothy LeGrand, an Assyrian woman professing to be a fortune teller and Indian healer, went to the home of Mike and Jennie Kubicek near Milligan, Nebraska, and offered to effect a cure for Mike Kubicek, who was then suffering from a cancer of the throat. As a means of ingratiating herself into the confidence of the Kubiceks, she produced a note purporting to have been signed by the defendant, a cousin of Mike Kubicek, which stated in substance that Dorothy LeGrand had cured her of gall stones, that she would cure him also if he would follow her instructions and believe in her, and that she was honest. The result was that Dorothy LeGrand started in that afternoon to cure Mike Kubicek of his affliction.

The method employed called for the use of money, a bowl of water, broomstraws and charcoal, which, when accompanied by the prayers of Dorothy LeGrand, was to result in a complete cure of Mike Kubicek. On the first day the sum of $6 was solemnly dipped in the water, blessed by Dorothy LeGrand and ceremoniously pinned on the breast of the patient. On subsequent days in which Dorothy LeGrand attended her patient, the amount of money was increased until the sum of $2,711 was being used; the amount of money used having been determined by the number of knots which Jennie Kubicek could tie in a strip of cloth provided by Dorothy LeGrand, the 27 knots so tied requiring the use of $100 for each knot. The result was that the money was abstracted and these trusting complainants bilked out of the whole $2,711. Law enforcement officers found Dorothy LeGrand in Spokane, Washington, with a newly purchased automobile and a small amount of money in her possession. She was returned to Fillmore county, where she entered her plea of guilty to the crime.

The record further shows that Mary Ruzicka, the defendant, was the wife of Frank Ruzicka, a farmer living near Dorchester, Nebraska. She was fifty-nine years of age at the time Mike and Jennie Kubicek were defrauded of their money. It appears that defendant believed she was endowed with certain faith-healing powers as was evidenced by a certificate issued to her by the State Spiritualists Association of Nebraska, declaring her to be a recognized faith healer. On August 13, 1938, defendant, while attending a picnic at Milligan, Nebraska, went to a concession booth operated by Dorothy LeGrand, and had her fortune told. She was told that she was suffering from gall stones; which in reality was a fact. The ensuing conversation re-suited in Dorothy LeGrand agreeing to call upon defendant at her home to cure her of her affliction. Later in the day, defendant took her aged aunt, Josie Novatny, to Dorothy LeGrand to have her fortune told. The interview resulted in a pronouncement that the aunt was suffering from kidney trouble, and also a declaration by Dorothy LeGrand that she could cure her with one treatment. The evidence also shows that defendant later met Jennie Kubicek at the picnic and informed her of her faith in the powers of Dorothy LeGrand and of her belief that Mike Kubicek might be helped by her treatments.

Pursuant to her arrangement with defendant, Dorothy LeGrand called at her home on August 16, 1938, and gave the first treatment. Defendant did not have the required fee of $2, and defendant’s husband drove a team and wagon to the home of his daughter and her husband, one-half mile distant, to obtain it. During his absence Dorothy LeGrand insisted that she had to have three or four other articles to hang in her church to effect a cure. By this means she obtained a dresser scarf, a bed spread and a dress which were to be returned after the last treatment. They, .of course, were never returned. Defendant then testifies that Dorothy LeGrand inquired about any persons in the neighborhood who were suffering with cancer. The names of Mike Kubicek and a Mrs. Halverson were given to her. Upon request, defendant wrote a note, introductory in character, to each of the two named persons. The written notes were not produced at the trial, and there is much conflicting secondary evidence as to their exact contents. An examination of all the evidence regarding the contents of the notes convinces us that they recited that Dorothy LeGrand had given defendant a treatment for her gall stones, that she had been helped thereby, and that the addressees of the notes should give her a trial. Other claimed differences in the notes are not material to a disposition of the case, although there is substantial evidence that a substituted note was delivered to the Kubiceks. Defendant testifies that Dorothy LeGrand came back on August 19, 1938, and gave her a second treatment consisting of the use of the -Bible and a prayer, accompanied by a rubbing near the afflicted area. Demands were made for other household articles which were refused and, according to defendant, resulted in some ill feeling and distrust. It is the contention of defendant that she never again saw Dorothy Le-Grand until she saw her in jail in Geneva, where she was being held for stealing the money of the Kubiceks. Defendant denies that she had anything to do with the larceny, claims she never saw Dorothy LeGrand during the period the fraud was being perpetrated, and positively denies that she ever received any part of the money. It is not contended that any of the stolen currency was found in the possession of the defendant.

The state bases its case almost entirely upon the evidence of Dorothy LeGrand, who, upon her arrest, implicated the defendant as an accessory. The story told by Dorothy LeGrand was substantially as follows: She had spent most of her life traveling over the United States with carnival companies. She had been married three times and was in the habit of using aliases including the names of her former husbands. During the times' herein- mentioned she was using the name of Mary Starr. There is little dispute in the evidence as to the transactions and conversations between defendant and Dorothy LeGrand at the Milligan picnic. The evidence of Dorothy LeGrand is that the first time she called on defendant at her home, and while defendant’s husband was driving over to his daughter’s house to borrow $2 to pay her, defendant conspired with her to defraud the Kubiceks. The testimony of Dorothy LeGrand is that she was not a faith healer and knew nothing of the art, that all she knew about it she learned from defendant during the half hour Frank Ruzicka was away, and that defendant instructed her in the use of the bowl of water, broomstraws, charcoal, and the Bible, and taught her to pray in order to gain the complete confidence of her victims. She testifies that defendant instructed her concerning the whole method of procedure and demanded that she be given half of the ill-gotten gain as her share. Her evidence also is-that on her second call on defendant on August 19, 1938, she informed defendant that she was about to take the money and that she would meet her at the crossroads a half mile from the Ruzicka home on the following Friday night, August 26, 1938, at 8 p. m., to divide the $2,700. She testifies that she did meet defendant near the designated crossroads as agreed and delivered $1,300 in currency to her, and that she thereupon took flight to avoid the punishment she so justly deserved.

The positive evidence of Frank Ruzicka, Leona Peterson and Paul Peterson, defendant’s husband, daughter and son-in-law, respectively, is to the effect that on the evening of August 26, 1938, from 5 p. m. until the next morning, the defendant was at and hear the family home and did not and had no opportunity to meet Dorothy LeGrand at the crossroads as she testified. The defendant also produced the evidence of five reputable residents of the Dorchester community who had known the defendant for many years, who testified that her general reputation as a law-abiding citizen was good. No evidence to the contrary was produced.

The sheriff of Fillmore county testified, among other things, that at the time of the arrest of the defendant, her husband said: “How much money will it take to settle this so she won’t have to go to Geneva?” The contention is advanced that this was evidence of guilt. We think the husband satisfactorily explained the statement when he said he was inquiring about giving a bail bond. But in any event the statement of the husband could not be used as an admission of guilt against this defendant. The statement was not admissible for any purpose.

The defendant complains of many alleged errors. Under our view, the case can be decided on the question of the sufficiency of the evidence to sustain the conviction and it will not be necessary to discuss other features of the case.

• Under the law of this state, an accessory before .the fact of a felony is equally guilty with the principal. Comp. St. 1929, sec. 28-201. The guilt of the principal in this case, Dorothy LeGrand, is conclusively established by the evidence. Also, it is the settled law of this state that a conviction may rest upon the uncorroborated evidence of an accomplice when sufficient in connection with the other evidence to satisfy the jury beyond a reasonable doubt of the guilt of the accused. Lamb v. State, 40 Neb. 312, 58 N. W. 963; Barnes v. State, 124 Neb. 826, 248 N. W. 381; Lovejoy v. State, 130 Neb. 154, 264 N. W. 417. Likewise, it is ordinarily for the jury to determine the credibility of the accomplice and the weight to be given to his testimony. But even so, the evidence must be sufficient to sustain a finding of guilt beyond a reasonable doubt as a matter of law before the verdict of a jury will be permitted to stand. We think a reasonable doubt was created as a matter of law, which precludes a verdict of guilty under the evidence produced. It will be our purpose in the remainder of this opinion to point out the evidence which creates a reasonable doubt as a matter of law.

The evidence is clear that Dorothy LeGrand was an Assyrian woman whose occupation was fortune telling and Indian faith healing, a person usually spoken of as a Gypsy and having the vagabond habits and traditional occupation of the Gypsy peoples. She denies that she was a healer of any kind and claims that the defendant taught her all she knew about it in a thirty-minute interval in the absence of defendant’s husband. That this statement is absolutely false is borne out by her own testimony. . The very first time Dorothy LeGrand interviewed the defendant she told her she had gall stones and agreed to come to defendant’s home to treat her. She came to the home and, according to her own evidence, administered a treatment and insisted upon and obtained pay therefor before any conversation was had about bilking the Kubiceks. Her admitted inquiries about prospective cancer patients, and her claims that she could cure them, likewise belie her testimony that she was not a faith healer.

The use of the broomstraws, charcoal, bowl of water and other articles employed in healing Mike Kubicek was not the work of a beginner. The finesse with which Dorothy LeGrand induced the Kubiceks to increase the amounts of money used from $6 to $11 to $111 to $1,411 and finally to $2,711 was not learned in a thirty-minute session with a simple Czech farm woman. The credulity of this court is such that we cannot accept the statement of Dorothy Le-Grand to that effect as true when considered in the light of the evidence and circumstances surrounding this case.

It is the testimony of Dorothy LeGrand that she called on defendant the second time on August 19, 1938. At that time she says that she told Mary Ruzicka that she would have $2,700 to divide with her on August 26, 1938, and that she made an appointment to meet Mary Ruzicka at the crossroads near her home at 8 p. m. of said day. In the first place, Dorothy LeGrand, at the time of this conversation, had induced the Kubiceks to put up the sum of $11 only, and she positively had no way of knowing how much she would be able to take. The knot-tying episode did not take place until later, and unless this court is going to concede that Dorothy LeGrand could divine the future, we must necessarily take the view that she deliberately falsified when she made this statement. Her testimony that she did meet the defendant at the crossroads at the designated hour and gave her $1,300 appears very unreliable. In the first place she says she came to the crossroads in a car driven by one Bob Stanley, met Mary Ruzicka where it was light and where she was plainly seen. The evidence of Stanley is that he parked his car while Dorothy LeGrand got out and walked down the road in total darkness and that he at no time saw Mary Ruzicka. The evidence of the husband, daughter and son-in-law of the defendant is that Mary Ruzicka never left their company on the night of August 26, 1938, at the time claimed by Dorothy LeGrand, and that she had no opportunity to do so. It might be expected that these witnesses, being interested, might color their testimony to aid Mary Ruzicka, but it does not appear probable, nor can it be presumed, that they would commit a deliberate perjury and fabricate a story which was much more plausible than that told by Dorothy LeGrand herself. The evidence shows that Dorothy LeGrand had previously arranged for her traveling companions to depart for the west earlier in the day, with the understanding that she and Stanley would overtake them along the road. With preparations made for flight immediately after the stealing of Kubiceks’ money, it requires an elastic imagination to believe that Dorothy LeGrand was so honest and reliable that she would drive out of her way to give $1,300 to this defendant. Certainly, the pursuit would be just as determined, whether she divided the spoils with Mary Ruzieka, or not. It is also noticeable that at the time of the trial of this defendant, Dorothy LeGrand, although she had entered her plea of guilty and had long before confessed her guilt, had not been sentenced. It is not difficult to believe that the fantastic tale unfolded by her was prompted somewhat by the hope of immunity from punishment. All of these evidences of the unreliability of Dorothy LeGrand as a witness, and the established good reputation of this defendant generally as a law-abiding citizen, establish as a matter of law, we think, that there is a reasonable doubt of the guilt of this defendant.

The evidence as a whole shows that Dorothy LeGrand was an admitted felon, a cheat and a fraud. She apparently has no respect whatsoever for truth. The contradictions in her own testimony are sufficient to show her unreliability as a witness. If the discredited testimony of so unreliable a witness is sufficient without corroboration to send a reputable person to prison, then our rule requiring proof of guilt beyond a reasonable doubt becomes a meaningless phrase and a mockery.

The state takes the view that a jury question was presented and that any attempt on the part of this court to arrive at a different conclusion would amount to a usurpation of the duties of the jury. We, of course, take the view that the evidence is insufficient to sustain a conviction as a matter of law, and that we are therefore obliged to direct a reversal of the case. We think, also, that our position is supported by a decision of this court which is very much in point. In Jahnke v. State, 68 Neb. 182, 104 N. W. 154, we said: “The evidence of an accomplice should be closely scrutinized. If it appears that such witness has wilfully sworn falsely in regard to a material matter upon the trial, his evidence cannot be sufficient, if uncorroborated, to support a verdict of guilty.”

In Sykes v. United States, 204 Fed. 909 (8 C. C. A.), the court disposed of a very similar case in the following language: “It is only when the evidence is sufficient to convince of the guilt of the accused beyond a reasonable doubt that one may lawfully be convicted of a crime. ‘It is undoubtedly the better practice,’ says the supreme court, ‘for courts to caution juries against too much reliance upon-the testimony of accomplices, and to require corroborating testimony before giving credence to them.’ Holmgren v. United States, 217 U. S. 509, 523, 524, 30 Sup. Ct. 588, 592 (54 L. Ed. 861, 19 Ann. Cas. 778). And the conclusion is that the uncorroborated testimony of the confessed perpetrator of a crime, contradicted under oath by herself, contradicted by other witnesses, and inspired by the hope of immunity from punishment, which in this case has since turned to glad fruition, that another was an instigator or a participator in the perpetration of her crime, is not only insufficient to establish his guilt beyond a reasonable doubt, but that it presents no substantial evidence of it. Jahnke v. State, 68 Neb. 154, 94 N. W. 158.”

A consideration of all the evidence adduced at the trial and the circumstances surrounding the commission of the alleged crime requires us to hold that the state has failed to produce evidence sufficient to sustain a finding of guilt beyond a reasonable doubt.

Reversed.