Vinciquerra v. State

Good, J. Sebastiano Vinciquerra, hereinafter referred to as defendant, was convicted of the crime of murder in the second degree. He prosecutes error to review the record of his conviction. At about the hour of 11 o’clock p. m., on the night of July 3, 1933, while Earl Haning and two companions were sitting at a table in a basement room in his home in Omaha, Nebraska, three shots were fired through the window screen, each piercing the body of Haning, from the [542] effects of which he died six hours later. No one, except possibly Haning, saw the person who did the shooting, and it is highly improbable that he saw, because the room in which they were sitting was well lighted, and the assailant was outside in darkness. Defendant and one Emmons were arrested and charged jointly in an information with committing the crime. Defendant was given a separate trial. All the evidence relating to the person who fired the shots is circumstantial, unless, as above indicated, Haning could, possibly, have seen his assailant. Defendant complains of the reception of certain evidence given by Officer Brigham, who testified that he took defendant to the hospital, where Haning was lying on an operating table, and that Haning there stated: “Well, you sure did it this time.” He was then looking at the defendant. The officer asked him: “Are you sure he is the man that shot you?” and Haning answered: “Sure, he is the man that shot me.” This officer testified that defendant neither admitted nor denied the accusation. This evidence was admitted at the trial, without objection. Whether evidence of this character should be received in evidence is a matter over which the decisions of the courts of this country are not in harmony. In the case of O’Hearn v. State, 79 Neb. 513, it was held that the test of admissibility of statements,, made in the presence of one accused of crime who remains silent, is whether the time, place and circumstances surrounding the transaction are such as to lead to the inference that 'the accused, by his silence, consented to the truth of the statements. However, in the present case, we are not called upon to pass on the question, since no objection was made and no opportunity given the trial court to rule upon the question. A defendant may not permit questionable or incompetent evidence to be admitted without objection, take the chance of a favorable verdict, and thereafter complain of its admission. Complaint is made of the giving of the following instruction : [543] “The evidence in this case is largely what is known as circumstantial evidence; that is, evidence of facts and circumstances tending to'indicate guilt, rather than testimony of eyewitnesses. “You are instructed that in considering circumstantial evidence, if the circumstances tend to prove some fact equally consistent with defendant’s innocence or guilt; then you must find all such facts in favor of the defendant.” It is contended that all the evidence is circumstantial, and that the use of the word “largely” in the instruction was prejudicial to defendant. Two eyewitnesses testified to the fact of the shooting, although these witnesses did not see the person who fired the shots. They did see the flash from the gun through the window and their effect upon the body of Haning. The use of the word “largely,” even though the facts were all circumstantial, could not have been prejudicial to defendant. Defendant complains of the refusal of the court to give a requested instruction on circumstantial evidence. The requested instruction is to the effect that, to warrant a verdict of guilty of the crime charged on circumstantial evidence, such evidence must be of a very conclusive nature and tendency, convincing on the whole, leading to a satisfactory conclusion and producing, in effect, a reasonable and moral certainty that the defendant, and no other, committed the offense charged; that the test to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances proved, tending to connect the defendant with the crime, are of such conclusive and positive a nature as to exclude, to a moral certainty, every rational hypothesis except that of defendant’s guilt. In Smith v. State, 61 Neb. 296, it was held: “To justify conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and, when taken together or as a whole, [544] must be of such a character as to be consistent with each other, and with the hypothesis sought to be established thereby, and inconsistent with any reasonable hypothesis of innocence.” See, also, Walbridge v. State, 13 Neb. 236; Bradshaw v. State, 17 Neb. 147; Casey v. State, 20 Neb. 138; Kaiser v. State, 35 Neb. 704; Davis v. State, 51 Neb. 301; Morgan v. State, 51 Neb. 672; Johnson v. State, 53 Neb. 103; Cunningham v. State, 56 Neb. 691; 16 C. J. 763; 8 R. C. L. 225, sec. 222. No instruction was given by the court to guide the jury in determining the sufficiency of circumstantial evidence to warrant a conviction. In the instant case, the defendant was shown by the evidence to have served a term in the penitentiary prior to the commission of the offense charged. He was under a cloud, and his own testimony would naturally be discredited, to some extent at least, by the jury. Under such circumstances, the requested instruction, or one similar to it, should have been given, and failure so to do was prejudicial to the rights of defendant. There are other assignments of error relating to alleged misconduct of prosecutor and of the court. We have examined them and find them without merit. Because of the' failure of the court to give the requested instruction, or one similar to it, the judgment is reversed, and the cause remanded for a new trial. Reversed.