Erdman v. State

Barnes, J.,

dissenting.

I am unable to concur in the conclusion of my associates. By the majority opinion it is'held, as one of the grounds for reversing the judgment of the district court, that it was reversible error to submit to the jury the testimony by which it was sought to connect the defendant with the dynamite contained in the suit case which was placed on the porch of the Dennison home. It was shown by the testimony that the dynamite in question was contained in a particular kind of wrapping which was used only by the firm that manufactured that kind of explosive; that the only place in the" vicinity of Omaha where that kind of dynamite was being used was in a certain quarry at the near-by town of Louisville; that a quantity of that brand of dynamite was stored there in a place accessible to any one who might for any reason desire to obtain it. It was also shown that, a day or two before the suit case was placed on the Dennison porch, the defendant was seen at Louisville, near the place where the dynamite was stored, and his presence there was wholly unexplained. Now the state had introduced testimony tending to show that the defendant was seen with a suit case like the one in question at or near the Dennison home, at or about the time the suit case which contained this same brand of dynamite was discovered upon the Dennison porch. It was therefore proper for the jury to consider the circumstances above described, with all of the other evidence, as tending to establish the defendant’s guilt. In this case, as in all other crimes of this nature, the-prosecution is compelled to rely upon circumstantial evidence, and it should be remembered that a dynamiter does not go into 1lie open market to procure his explosives, but, in order to avoid detection, is compelled to procure them in the most secret and surreptitious manner. Therefore, the state was entitled to the benefit of every circumstance which tended in any way, however remote, to aid the jury in determining the guilt or innocence of the defendant. The probative force of this evidence was a question for the jury alone, and not one to be determined, declared or commented on by a court of review.

The majority, as another reason for reversing the judgment of the district court, hold that it was error to receive the evidence of the trunk dealer of the city of Omaha that just previous to the time the suit case in question was placed on the Dennison porch he had two suit cases in stock similar to the one found at the Dennison home, that he missed one of them, and that neither he nor his clerks had sold it, so far as he knew. It is said that this evidence was immaterial and irrelevant, and was prejudicial to the accused.

It should be remembered that one contemplating the commission of the crime of dynamiting the home of another would necessarily observe the same secrecy in obtaining a suit case, or other receptacle in which to inclose his infernal machine, as he would in obtaining the explosive with which to charge it, and when it was shown that defendant was seen at or near the Dennison home with a suit case like the one in question, and which may have been the one which the dealer missed from his stock, it would seem that this circumstance was properly given to the jury to aid them in correctly solving the main question under' consideration.

The third ground on which the reversal is predicated is that the court erred in allowing the county attorney in the examination of a witness to read to her excerpts from her former written statement, in order to refresh her recollection. The contents of the written statement was neither read to her in the presence of the jury, nor was the jury permitted to examine it. In other words, it was not offered or received in evidence. I am of opinion that this was not reversible error, but was in all respects in accordance with the correct practice and the well-established rule that a memorandum or written statement made by a witness may be used to refresh his recollection. I am unable to see how this was in any way prejudicial to the rights of the defendant.

The fourth reason for the reversal is that the court erred in not permitting the Omaha Bee reporter to use or read an article published in that newspaper to refresh his recollection of what he saw at the time the suit case in question was examined. As I read the record, this witness testified that he could not recollect what he saw or just what transpired at the time the suit case was opened; that he wrote an account of the matter at the time, which was published in his newspaper; that what he wrote was correctly published; that he had lost his original notes taken at the time, but he failed to state ■ that what he wrote was the truth of the matter, and therefore it would seem that the court properly refused to allow him to testify from the published article, because this was secondary evidence which- was not clearly shown to reflect the truth of the transaction in question. Again, this ruling could not have resulted in any prejudice to the accused, for the transaction was treated by the witness as so wholly inconsequential that the facts there disclosed made no lasting impression on his mind.

Finally, and in concluding this dissent, I feel constrained to protest against so much of the majority opinion as discredits the probative force of the evidence produced by the state, and which seems to indicate that it was insufficient to sustain the verdict of the jury. I do this because the case is remanded for further proceedings, and the opinion will make another conviction impossible. We should not thus destroy the power of those charged Avith the duty of enforcing our criminal laws to properly perform that duty. It would seem that the main question for this court to determine in cases like the one at bar is, has the defendant been accorded a fair trial? Upon that question, an examination of the record satisfies me that the defendant was not only accorded that right, but was given an unusual latitude in presenting his defense. The jury found him guilty, and I am persuaded that the evidence sustains the verdict. In such cases a reviewing court should not reverse the judgment for trivial causes, or technical errors.

For the foregoing reasons, I am of opinion that the judgment of the district court should be affirmed.

Fawcett, J., concurs in this dissent.