115 Neb. 535 | Neb. | 1927
William Drawbridge, defendant, was placed on trial upon an information which in due form, in two counts, charged him with selling intoxicating liquor to one Jack Moyer. The first count charged the offense to have been committed on May 10, 1925, and the second count on May 11, 1925. The jury returned a verdict of guilty on the first count, and not guilty on the second count, whereupon the court sentenced defendant to pay a fine of $100 and to be committed to the county jail at hard labor for a period of 90 days. Alleging there was error on the trial, the defendant has brought the record of his conviction to this court for review.
It is first urged by defendant that the court erred in refusing to give an instruction, tendered by him, based upon the maxim, “Falsus in uno, falsus in omnibus.” The form of the instruction is not questioned, but it is contended by the state that the facts did not present such a situation as to require it to be given. The only basis for the instruction lies in the fact of a direct conflict in the testimony of the prosecuting witness and the defendant. The prosecuting witness, who was employed by the state to secure
The court gave the usual instruction as to the right and power of the jury in weighing the testimony, and that they were the sole judges of the credibility of the witnesses. The court also gave cautionary instructions warning the jury to exercise a greater care in weighing the testimony of persons who are employed to find evidence against the accused, because of the natural and unavoidable tendency of such persons to construe everything as evidence against the accused. This instruction clearly referred to the prosecuting witness, as he was employed by the state to collect evidence in this class of cases and the only witness who testified as to the sale.
It is next urged by the defendant that the judgment is contrary to law. The information, omitting formal parts, charged that the accused, on a day certain, “wilfully, know
In paragraph 5 of the syllabus in the Knothe case, we say: “It charges, however,'an offense under section 3238, Comp. St. 1922, punishable exclusively as provided by section 3288, Comp. St. 1922.” The word “exclusively” was inadvertently used, and was intended only to draw particular attention, that the provisions of section 3288 should be applied in contra-distinction to those prescribed by chapter 106, Laws 1925, and not as a limitation on other provisions of the statute.
Upon the authority of the Knothe case, the judgment is reversed and the cause remanded to the district court, with directions to impose a sentence as provided by section 3288, Comp. St. 1922, but without prejudice to the right of the court, if a jail sentence is imposed, to couple therewith a condition as prescribed in section 10169, Comp. St. 1922.
Reversed.