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In State v. Casados, 193 Neb. 28, 225 N.W.2d 267 (1975), the defendant was charged with possession of concealed weapons and of a combination of parts intended for use in converting a device into a destructive device — a Molotov cocktail — and convicted on the destructive device charge.
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Nos. 39321, 39435.
Filed January 23, 1975.
1. Criminal Law: Witnesses: Trial: Time. A defendant's character witness may, on cross-examination, be asked if he has heard that the defendant has been previously convicted or arrested for other crimes, provided such misconduct occurred prior to, and not after, the commission of the crime charged. 2. Criminal Law: Witnesses: Trial. The scope of the cross-examination of a character witness, in the absence of an abuse of discretion, is discretionary with the trial court. 3. ___: ___: ___. The cross-examination of a character witness as to other misconduct on the part of a defendant is admissible, not to establish the truth of the facts, but to test the credibility of the witness and ascertain the weight to be given to his testimony, and must be made in good faith. 4. Criminal Law: Intent: Destructive Devices. In the prosecution of a violation under section 28-1011.22 (7) (b), R. S. Supp., 1972, intent is a material element of the offense charged.
Appeals from the District Court for Scotts Bluff County: ALFRED J. KORTUM, Judge. Reversed and remanded for new trials.
Charles F. Fitzke and James T. Hansen, for appellants.
Clarence A. H. Meyer, Attorney General, Ralph H. Gillan, and Terry R. Schaaf, for appellee.
Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ., and BLUE, District Judge.
John T. Arbuckle and Leroy Casados were each charged with possession of concealed weapons and of a combination of parts intended for use in converting a device into a destructive device, to wit: a Molotov cocktail. Casados was acquitted of the concealed weapon charge but convicted on the destructive device charge. Arbuckle was convicted on both counts. The items constituting the combination of parts for a destructive device consisted of candles, rope, pieces of cloth, gallon jugs, and gasoline found in the Casados automobile. We find the evidence sufficient to sustain the convictions but reverse both on other grounds.
In the trial of the defendant Arbuckle, the defense called several witnesses who testified that his general reputation was good; his reputation for truth and veracity was good; and his reputation as a law-abiding person was good. In cross-examining these witnesses, the county attorney asked them if they knew or had heard of his conviction in a federal court of making false and fictitious statements to purchase firearms, and on three other felony charges, or of his arrest in Lancaster County, Nebraska, on charges of assault with a deadly weapon, and being a felon in possession of a firearm.
It is the general rule that a defendant's character witness may, on cross-examination, be asked if he has heard that the defendant has been previously convicted or arrested for other crimes. See, Annotation, 47 A.L. R. 2d at 1297; State v. Newte, 188 Neb. 412, 197 N.W.2d 403; Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L.Ed. 168. It is likewise the general rule that such misconduct must have occurred prior to, and not after, the commission of the crime charged. See, Annotation, 47 A.L.R. 2d at 1301; II Whartons Criminal Evidence (13th Ed.), 426, p. 327. The scope of the cross-examination of a character witness, in the absence of an abuse of discretion, is discretionary with the trial court. See State v. Newte, supra. The cross-examination of a character witness as to other misconduct on the part of a defendant is admissible, not to establish the truth of the facts, but to test the credibility of the witness and ascertain the weight to be given to his testimony, and must be made in good faith. See Annotation, 47 A.L.R. 2d at 1274 and 1314. The violation of these rules in the Arbuckle case was prejudicial and would require its reversal on both counts.
In regard to the charges, in both cases, of unlawful possession of a combination of parts designed or intended for use in creating a destructive device, it appears that the minds of the trial judge and the attorneys were not clear on the question of "intent." The pertinent portion of the statute provides: "(7) * * * (a) Any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, (vi) booby trap, (vii) Molotov cocktail, or (viii) any similar device, the primary or common purpose of which is to explode and to be used as a weapon against any person or property; or
"(b) Any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subdivision (7) (a) of this section and from which a destructive device may be readily assembled. The term destructive device shall not include any device which is neither designed nor redesigned for use as a weapon to be used against persons or property; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of Section 4684 (2), 4685, or 4686 of Title 10 of the United States Code; or any other device which the State Fire Marshal finds is not likely to be used as a weapon, or is an antique; or any other device possessed under circumstances negating an intent that the device be used as a weapon against any person or property; * * *." 28-1011.22, R. S. Supp., 1972.
It is evident that simple possession of a completed destructive device designed for use as a weapon is unlawful regardless of intent unless it is one referred to in section 28-1011.22, subdivision (7) (b), R. S. Supp., 1972, possessed under circumstances negating an intent that it should be used as a weapon. See United States v. Morningstar, 456 F.2d 278 (4th Cir., 1972).
In the instructions on the elements of the offenses, the court stated: "1. That the defendant * * * did unlawfully have in his possession a destructive device, to-wit: a combination of parts either designed or intended for use in converting any device into a Molotov Cocktail and from which such Molotov Cocktail may be readily assembled." In the present instance the parts referred to were themselves, when not assembled, essentially innocent in nature and obviously not designed as a destructive device. The word "designed" was improperly included. The pertinent part of the statute is that the parts should be intended for assembly and use as a destructive device. The instruction given was confusing and not entirely clear on the issue of intent. Arguments to the jury in the Arbuckle case indicated the attorneys felt that intent was not an element of the charge, and in one instance when the defendant was asked, "Did you intend to use the articles in the van on the night of January 15th, to make a destructive device?" the county attorney objected to the question on the ground "His intent on use is immaterial, not relevant." The objection was sustained. The Nebraska statute is similar to the federal statute. In United States v. Morningstar, supra, it is said: "Instead, in subparagraph (3) it defined a second type of illegal materials as a `combination of parts * * * intended for use in converting any device into a destructive device * * *' (Emphasis added) such as a bomb. It is apparent, therefore, that Congress provided that the use for which these materials are intended determines whether they fall within the Act."
In United States v. Posnjak, 457 F.2d 1110 (2d Cir., 1972), the following was stated with approval: "In United States v. Davis, 313 F. Supp. 710 (D. Conn. 1970) in which the defendant was found with bottles, rags, and a can of gasoline, the question of whether he intended to convert these components into a Molotov cocktail, a crude but well-known variety of incendiary bomb, was a central issue."
The jury should have been instructed in each case that intent is a material element of the offense charged and that before a verdict of guilty could be returned, it was necessary for the State to prove beyond a reasonable doubt that the defendant intended to convert the various items found in his possession into a destructive device. A showing as to where and when the destructive device was to be used is not essential. The failure to clarify the issue of intent was prejudicial.
There are other assignments of error submitted but we find them to be without merit.
The judgment of conviction is reversed in each of these cases and they are remanded for new trials.
REVERSED AND REMANDED FOR NEW TRIALS.
WHITE, C.J., took no part in the consideration or decision in these cases.