79 Neb. 811 | Neb. | 1907
Lead Opinion
The defendant in this case was charged in the information with the larceny of $1,000 in gold. Upon the trial in the district court for Nemaha county he was found guilty and sentenced to imprisonment in the penitentiary.
1. The prosecuting attorney filed in the district court an application for leave “to file information in this court before the judge thereof as examining magistrate.” The record recites that a showing was made to the court that the county judge “is incompetent to hear the same.” Leave was given the county attorney as requested, and a complaint was filed in two counts, the first charging the defendant with the larceny of $1,000 in gold, and the second charging the defendant with the larceny of $1,000 in gold coin; “and paper money or currency of the amount and value of $1,000 lawful currency of the United States of America.” No warrant was issued upon this complaint, the defendant being present in court. When the defendant was called upon to plead, he refused to do so, and a plea of not guilty was entered for him, and an examination had upon the complaint by the judge of the district court sitting as an examining magistrate. The judge found from the evidence that the crime charged in the first count of the complaint had been committed, and there was cause to believe that the defendant committed the same. The defendant was therefore held for trial in the district court. The first objection made to these proceedings is that the judge, as an examining magistrate, acquired no jurisdiction in the case because no warrant was issued for the arrest of the defendant. Some suggestions are also made of doubt as to the authority of the district judge to act as an examining magistrate, but this jurisdiction is given by the plain provisions of the statute (Cr. code, sec. 262), and has been recognized by this court in State v. Dennison, 60 Neb. 192, and Van Buren v. State, 65 Neb. 223. Section 286 of the criminal code provides that, when a complaint is filed, “it shall be the duty of such magis
2. The second contention is that the court erred in arraigning the defendant. While the jury were being examined as to their qualifications to sit as jurors in the case, it was discovered that the defendant had not been arraigned on the information. No evidence had' been taken, nor indeed had a jury yet been accepted and sworn to try the case. After the defendant had been duly arraigned, the jurors were re-examined as to their qualifications to try the case, so that the whole trial was had after the arraignment of the defendant. There was no error in this proceeding on the part of the court.
3. The defendant admitted that the money described in the information had been in his possession, and he after-wards returned $145 thereof to Boyd, the guardian. The court instructed the jury that the return of this money by the defendant “is not of itself sufficient to entitle the defendant to an acquittal.” The court in this instruction set forth the elements of the crime charged, and told the jury that if all these had been proved beyond a reasonable doubt the defendant would be guilty, notwithstanding the subsequent return of a part of the money. This instruction is complained of in the brief, but we think the objection is without merit. The fact of the return of this money having been proved, it was proper that the jury should know the legal effect of such evidence, and we cannot see that the defendant was prejudiced thereby.
4. The defendant, as before stated, was charged with the larceny of the gold. He insisted upon the trial that he came lawfully into possession of the gold, and could
Section 121 of the criminal code defines embezzlement, generally, and prescribes the punishment therefor, and in other cases not covered by this section, if one obtains possession of property with the consent of the OAvner, so that he does not become a trespasser in so doing, and after-wards converts the property to his OAvn use with intent to steal the same, he may be prosecuted under the act of 1875. Laves 1875, p. 26. Under the information in this
It appears from the evidence that one Ulbrich had before the time of the alleged larceny been found to be insane, and one Boyd had been appointed as his guardian. Ulbrich, shortly before his insanity, had sold property and received several thousand dollars therefor, and the guardian Avas unable to find or satisfactorily account for this money. It Avas supposed that Ulbrich had concealed the money upon the premises in Auburn, Avhere he resided at the time he became insane. These .premises were rented to the defendant, and he Avas living there Avith his family at the time of the transaction complained of. It was conceded that the defendant found the money, which he is charged Avith having stolen, upon the premises in question, and that soon after finding the gold he took it to Nebraska City, and, having squandered at least a part of it, then went to Omaha, and afterwards returned to Auburn, and informed the guardian that he had lost all the money Avliile drunk except $145 in gold, Avliich he returned to the guardian. He insisted that he had been authorized to take possession of the gold, and that his wrong doing, consisted in not doliArering the gold to the guardian, as he had been instructed to do; whereas, the prosecution insisted that he had no authority to take possession of the gold, but that it Avas his duty, Avithout taking the gold, if he found it, to inform the guardian. The defendant insisted that, under the evidence in this case, this question should be submitted to the jury, but the court held, over the objection of the defendant,' that there was
It appeal’s that, Avhen the defendant found the $1,800, Mr. Boyd Avent Avith him to the county judge, and that the county judge took part AArith Mr. Boyd in questioning the defendant and instructing him Iioav to proceed in the future, and the county judge testified in regard to this conversation as folloAvs.: “At the last of the conversation I asked him if he found any more money doAvn there Avould he bring it to Mr. Boyd or myself at once and turn it over to us, and he promised us he would, and I repeated the injunction to him seAreral times and cautioned him about it. If you find any more money doAArn there, yon will bring it to ns. And he promised us he would. Not only promised us he would, but appeared sincere in it.” This testimony was substantially repeated by this witness upon his cross-examination. Mr.' Boyd Avas again upon the Avitness stand, and testified that he heard this instruction by the county judge to the defendant, and that he heard the defendant promise that, if he found any more money, he would immediately take it to the county judge or to Mr. Boyd, and was asked if he made any objection to the instruction given the defendant by the county judge. He Avas not alloAved to ansAver this question, apparently because it Avas not supposed to be proper cross-examination of the evidence which he had given in chief Avhen first upon the Avitness stand. We can see no other reason why this evidence should be excluded, and it is not very apparent that there is any just ground for excluding it.
When the defendant had found this gold, he started to Nebraska City with it. On the Avay to the train he met an acquaintance, and told him that he had found some money, and that he was going to Nebraska City to deposit it in a bank, and borrowed $5 of him. He Avas asked if the
The judgment of the district court is reversed and the cause remanded.
Reversed.
Rehearing
A motion for rehearing has been filed in this case, which is supported by an exhaustive brief in which it is strenuously maintained that the court erred in holding that the question should have been submitted to the jury whether the defendant was a trespasser in taking possession of the property when found. The gist of the argument is thus stated in the brief: “It attempts to shift the issue as to the ownership and possession of the money stolen. In theory this decision in based upon the proposition that the guardian, at the time of !hp conversation in the county judge’s office with the defendant, was in control of, and had the right to order a change in the possession of, the $1,000 in gold, and from that time any trespass which might be committed as to this money would he against the guardian,.and would be excused by the consent implied in his direction to the defendant. It is clear that the owner placed the money in the jar in the earth, and while it remained there undisturbed it was in Ms possession. The right of possession in the guardian under the law must not be confused with the possession of the real owner. The owner’s possession was disturbed the first time when the
There can, of course, be no doubt that, when the guardian was appointed and the ward was deprived of his personal liberty — incarcerated in the asylum — the guardian had the right of possession of the ward’s property, wherever situated, and in law was in control thereof. The guardian could, of course, take possession of the gold if he found it himself. It would be his duty to do so. If he had been present with the defendant at the time, he could, of course, have entrusted the gold to his possession. And, also, the guardian could, if he supposed that there was a probability that property of his ward of any description Avas hidden upon the premises, send his agents to take the property and to dispose of it for him. By doing so he would
The question whether the instructions of the guardian, if they were as claimed by the defendant, would result in giving to the defendant the custody merely of the property as the servant of the guardian and for a specified purpose, is a more serious question, a question not presented in the original briefs and not much discussed in the present one. If the defendant and the guardian had been present when the jar containing the gold was found, and the guardian had entrusted the defendant with the jar to be delivered in a certain place, and the defendant had afterwards broken the jar with intent to steal the gold, there can be no doubt that the breaking of the jar and taking possession of the gold would be a trespass against the rights of the guardian upon the part of the defendant, but this was not the case here. It was, according to the defendant’s theory, the money and not the unbroken package that Avas entrusted to the defendant to be delivered to the county judge or to the guardian, and this question,-as well as the other questions pointed out, should have been submitted to the jury under proper instructions. The technical and exact distinctions betAveen larceny by bailee and larceny in general, created by the statute, must be observed by the courts. The defendant cannot be charged with the crime of larceny in general and convicted of the crime of larceny as bailee. The distinction of the common law betAveen
We think that the judgment complained of is right, and it is therefore adhered to. Motion for rehearing
Overruled.