Baskins v. State , 138 Neb. 334 ( 1940 )

Rose, J.

In a prosecution by the state of Nebraska in the district court for Lincoln county, Joseph R. Baskins, Clyde* D. Macomber and Albert A. Hastings, defendants, were charged in the first count of the information by the county attorney with the kidnaping of the complaining witness, Sam I. Pappas, November 21, 1937; in the second count with robbing him of $275; in the third count with making an assault upon him with intent to inflict great bodily injury.

A motion by Joseph R. Baskins, defendant, for a change of venue was sustained and he was tried in the district court for McPherson county. The counts for kidnaping and robbery were dismissed with the consent of the state’s attorneys. The jury found Baskins guilty of assault with intent to inflict great bodily injury and for that felony he was sentenced to serve a term of two years in the penitentiary. As plaintiff in error he presents for review the record of his conviction.

It is argued as a ground of reversal that the evidence does not prove that defendant committed the assault charged nor the intent to inflict great bodily injury.

The relationship of the three defendants to each other and to the city government of North Platte are important factors in a review of the conviction. At the time of the felony charged, defendant Macomber was a member of the police force, a patrolman. Defendant Baskins was a member of the city council and chairman of the police committee. Defendant Hastings conducted an insurance and loan business in North Platte and was active in city politics. The evidence justifies a finding that the three defendants named had entered into a conspiracy to compel Sam I. Pappas to confess to a felony of which he was not guilty, a confession which might lead to a long term of service in the penitentiary. There is also evidence of the following facts: Macomber and Baskins drove to the home of Pappas in a police cruiser not long before midnight, Sunday, November 21, 1937. Macomber intimated that something for the good of Pappas was contemplated and the latter consented to leave home in the cruiser with the city officials. Pappas had not been accused of any offense and there had been no warrant for his' arrest. He was not told he was under arrest. He was taken to Macomber’s room, 25 in the Ritner hotel, Without knowledge of what was in store for him there. Hastings was promptly called to the hotel by telephone and while the four men, Macomber, Baskins, Hastings and Pappas, were in room 25, with the door closed and bolted on the inside, Macomber made a demand on Pappas to confess he had committed a felony. The latter asserted his innocence and refused to confess. Threats to make him do so were made. Baskins and Hastings held Pappas while Macomber beat him: Pappas tried to escape, unbolted the door and got into the hall outside, was beaten there, dragged back into the rootn where the beating was continued. After the beating and turmoil ceased in room 25 with the departure of the four occupants, there was blood on the walls, on the floor, on a rug in front of the bed, on the bedspread, on the drapes, on the walls in the hall and on the radiator. Physical injuries inflicted on Pappas, as described by a physician who examined him in a hospital to which he had been taken promptly and, as related in the majority opinion in Macomber v. State, 137 Neb. 882, 291 N. W. 674, were as follows:

“Pace badly bruised; eyes swollen shut; deep cut, with ragged edges, an inch long over the left eye; slighter cut over same eye; nose skinned; lip cut on right side; inside of cheek bruised on upper right side; lacerations close to the lips; right side of face puffed with air, passing under the tissues and extending over the entire side of head and face to margin of collarbone; portion of air breathed passed through torn tissues under the skin, over the side of the face and neck; lachrymal bone fractured; whites of both eyes red; bump on head back of ear; stitches required to close wounds.”

There is cogent evidence of the foregoing facts. Moreover the logical inference from all the testimony is that the motive for the assault and for the attempt to compel Pappas to confess a felony which would subject him to a long term in the penitentiary was to get rid of him as a gambler whom the trio had unlawfully protected and thus procure for themselves profits of gambling.

The assault was designated by defendant as a fist fight started by Pappas, but the jury reached a different conclusion. Pappas, in advance, was known to be unarmed. Macomber was in uniform and armed. Locked in a room with him, with the city lawmaker and with the local politician, Pappas was helpless. His eyesight had been impaired and- his strength had been weakened by a disease of long standing. Naturally the absurdity of such a defense under the circumstances would not escape the attention of the jury as evidenced by their verdict of guilty.

Defendant contends and argues that he did not strike Pappas and did not intend to inflict great bodily injury and that these elements of the felony charged were not proved. As city officers, Baskins was the superior of Macomber, saw the assault from beginning to end and did not stop it. There is evidence that Baskins and Hastings held Pappas while Macomber made the assault, and thus aided in the commission of it. The law is as follows:

“Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.” Comp. St. 1939, sec. 28-201.

On the issue of intent, an adult sane person may be presumed to intend the natural and probable consequences of his voluntary acts. Ford v. State, 46 Neb. 390, 64 N. W. 1082. Criminal intent or felonious purpose may be shown by circumstances. Buckley v. State, 131 Neb. 752, 269 N. W. 892; Jurgensen v. State, 135 Neb. 537, 283 N. W. 228.

Every element of the felony charged was clearly proved and the jury were justified by the evidence in finding Baskins guilty beyond a reasonable doubt.

The appointment of Milton C. Murphy as assistant prosecutor and his conduct in that capacity are criticized as grounds for setting aside the verdict. The record does not show such prejudice against defendant as to disqualify Murphy as a prosecutor. It does show, however, that he was improperly provoked by counsel for defendant at times into unbecoming retorts and breaches of etiquette. Counsel on both sides were repeatedly admonished by the court for misconduct of this kind. In criminal law the right of the state to prove the guilt of defendant by lawful methods is as important as the right of the defendant to a fair and impartial trial. The law does not permit defendant or his counsel, without reason or excuse, to provoke the prosecuting attorney into unbecoming retorts or breaches of etiquette and thus make such misconduct a ground for a new trial without regard to guilt, though proved beyond a reasonable doubt. Flannigan v. State, 125 Neb. 519, 250 N. W. 908. For the most part the asperities were directed to counsel and not to defendant. Unless he was prejudiced by misconduct, the. statute and the rules of court forbid a reversal on that ground. Comp. St. 1929, sec. 20-853; O’Connor v. State, 123 Neb. 471, 243 N. W. 650; Flannigan v. State, 125 Neb. 519, 250 N. W. 908. The assignments of error relating to misconduct of counsel have all been examined without finding error prejudicial to defendant. The evidence of guilt makes a strong appeal to common sense, reason and judgment and accounts for the verdict instead of misconduct of counsel.

A reversal is also demanded on the ground that assistant prosecutor abused his privileges as such and prevented a fair and impartial trial by applying epithets to defendant and otherwise using improper language in his address to the jury. The record shows that he used some intemperate language, but, when what he said is considered in connection with the testimony of witnesses, it is no more severe in import than legitimate inferences in argument from the evidence of guilt before the jury. Though open to criticism in some particulars, the address of the assistant prosecutor to the jury was not such as to vitiate the verdict.

There are many other assignments of error, but the record has been considered from beginning to end without finding an error entitling defendant to a new trial.

Affirmed.