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03/06/70 STATE NEBRASKA v. RONALD EUGENE KIRBY

March 6, 1970

STATE OF NEBRASKA, APPELLEE,
v.
RONALD EUGENE KIRBY, APPELLANT



Appeal from the district court for Douglas County: Rudolph Tesar, Judge.

White, C. J., Carter, Spencer, Boslaugh, Smith, McCown, and Newton, JJ.

SYLLABUS BY THE COURT

1. Trial: Juries. A party in the selection of a jury ordinarily has no right to examine a juror out of the presence of all other jurors.

2. : Trial: Juries. Whether, during the trial of a criminal case, the jury shall be allowed to separate, after being duly cautioned, is a matter for the discretion of the trial court, and the exercise of such discretion, unless abuse or prejudice is shown, furnishes no ground for error.

3. Trial: Juries. One who cannot subordinate his personal views to what he perceives to be his duty to abide by his oath as a juror and to obey the law of the state must be excused for cause.

4. : Trial: Witnesses. The asking of improper questions of a witness to which objections are sustained by the court does not constitute prejudicial error in the absence of a showing that defendant was thereby deprived of a fair and impartial trial.

5. : Trial. A defendant is entitled to a fair trial but not a perfect one.

6. : Evidence. As a general rule, evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution.

7. : Evidence. In crimes involving motive, criminal intent, or guilty knowledge, evidence of independent crimes wholly disconnected with the one charged may be received.

8. : Evidence. A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof.

9. : Trial: Witnesses. A defendant in a criminal case who becomes a witness subjects himself to the rules applicable to other witnesses.

The opinion of the court was delivered by: Spencer

Defendant was convicted of the murder of Gilbert Arthur Batten, Jr. He was sentenced to life imprisonment and has perfected an appeal to this court.

The murder occurred shortly after 3 a.m., on September 20, 1968, at 3724 Ohio Street, in Omaha, Douglas County, Nebraska. Defendant had been to the premises on two other occasions the previous evening, looking for a Judy Dunbar. The premises in question were occupied by James Lynch with his four minor children. Defendant appeared at the premises about 7 p.m., on September 19, in the company of a tall Indian later identified as Robert Walker, and a Donna Marshall. He was carrying a .22 caliber survival rifle. On this occasion he did not enter the house but asked Lynch if he had been dating Judy Dunbar, and when Lynch told him he had defendant told Lynch to stay away from her and Lynch said he would. Defendant shot two or three times at a brush pile and Walker shot at a rabbit. They were at the premises for approximately 15 or 20 minutes. On that occasion Donna Husky, her child, and Eugene Phillips, all of whom were also living on the premises, were present, as well as the deceased who lived in the neighborhood, and Judy Warner who lived elsewhere.

Defendant returned to the premises at 11:30 p.m., on September 19, 1968, this time with a girl named Pam or Patty. He was admitted to the premises by the deceased. He was still carrying the gun he had on his previous visit. Lynch was not home. Judy Warner, Eugene Phillips, Donna Husky, deceased, and Harriet Taylor, a neighbor, were the only ones present other than the children, who were asleep. Deceased asked Judy Warner to get defendant a beer, and when she did not respond quickly enough defendant said, "* * * when he tells them to do something they do it," and ordered the girl with him to get down on her knees, which she did. Defendant was dissatisfied with the brand of beer offered, and left within 15 minutes. When he left he said he was going to see if he could find Judy Dunbar at her home. If not, he would be back.

Subsequently, Lynch returned home about 12 midnight and went downstairs to bed. Defendant returned to the premises about 3 a.m., on September 20, 1968. Deceased and Judy Warner were sitting on a couch in the parlor. Defendant asked for James Lynch, and when he was told Lynch was asleep in the basement he asked how to get to the basement, and forced the deceased, who opened the door, to show him the way. Defendant still had the gun in his hand. He was accompanied on this ...


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