117 Neb. 531 | Neb. | 1928
The defendants, Ferl Flanagan and James Burruss, were jointly charged with cattle stealing in the district court for Furnas county, Nebraska. To this charge both entered pleas of “not guilty.” A trial of the issues by a jury resulted in a verdict of “guilty as charged.” Both defendants were then sentenced to be confined in the state
The first error assigned in their behalf is that the district court erred in the giving of instruction No. 10 of the instructions given by that court on its own motion. This instruction covers the subject of the evidential effect of proof of unexplained possession of property, alleged to have been stolen, shortly after the theft thereof. It is conceded that the instruction in itself is a correct statement of the abstract principles involved, but it is claimed that it becomes erroneous because inapplicable to the evidence of the record.
It is to be remembered that the issues herein tried and determined were pleas of “not guilty” to an information charging a joint offense. Recent unexplained possession of stolen property described in the information was not only established as' against Burruss by the witnesses for the state, but Burruss admits the theft of that property by himself, and admits that, on the night of the crime, he conveyed it out of the state of Nebraska. Though Burruss admitted the commission of the crime, his plea of “not guilty” remained unchanged, and it was essential that the jury convict him, if at all, upon due consideration of all the evidence of the record. As to Burruss, at least, it must be conceded there was ample evidence before the court to justify the giving of the instruction complained of. The instruction complained of was limited, by its terms, as applicable only to such defendant whose unexplained possession of the stolen property was established “by evidence beyond a reasonable doubt.” Therefore Flanagan could not have been prejudiced thereby.
The defendants next contend that the district court erred in refusing to give instruction No. 11 requested by the defendants to the effect that — “A person who, at the instance of the authorities interests himself in securing evidence on behalf of the prosecution, or who is sent by the prosecuting authorities to ingratiate himself into the confidence of the accused persons and to secure from them
In lieu of the instruction requested, the court, on its own motion, instructed the jury that — “In determining the credibility and weight to be given to the testimony of witnesses, you may take into consideration their interest, if any, in the result of this case, their conduct and demeanor while testifying, their opportunities for seeing and knowing the things about which they testify, and the reasonableness or unreasonableness of their story.” Instruction No. 14.
The defendants cite as sustaining their contention Preuit v. People, 5 Neb. 377; Kastner v. State, 58 Neb. 767; Sandage v. State, 61 Neb. 240; Fruide v. State, 66 Neb. 244.
It would seem, however, that the witnesses in the present case, to whom it is sought to apply the rule set forth in defendants’ instruction No. 11, are neither within the spirit nor letter of this rule,, in view of the attitude of this court thereon, as evidenced by its later pronouncements.
In Keezer v. State, 90 Neb. 238, involving a situation
It is the duty of good citizenship to uphold the law and aid in its enforcement. To do this the detection and punishment of crimes is a necessary incident. A well-considered public policy would indicate that, in the absence of affirmative evidence of the presence of a pecuniary or financial interest on part of a citizen in, or affected by, the results of a contemplated or pending prosecution, his commendable response to the'demands of a public duty in the in
We therefore conclude that, in view of the fact that the rule announced in the instruction tendered by defendants and sought to be applied to sheriffs, county attorney, and certain citizens, none of whom were properly within the designation “detective,” and as to none of whom does the record disclose any pecuniary or financial interest to be affected by the results of the prosecution, the action of the district court in refusing the same, in view of the instruction given by the court on its own motion, is approved.
It is contended that the evidence is insufficient to sustain the conviction of Flanagan. The theory of the state presented at the trial was that the larceny of the cattle was committed by Burruss and Flanagan. Burruss, though entering a plea of “not guilty,” was sworn as a witness, admitted his guilt, and claimed that he acted alone. Flanagan also testified in his own behalf and denied that he had anything to do with the larceny.
It would unduly extend this opinion to set forth in detail the evidence contained in the record, but a careful examination of the evidence of a circumstantial nature produced by the state, and comparing it with the opposing evidence of the interested parties in the litigation, convinces us that the verdict of the jury on this conflicting evidence is amply supported and should not be disturbed on appeal.
We cannot say, as a matter of law, that the circumstantial evidence against Flanagan on the question in issue is so lacking in probative force that the jury should not be permitted to declare that they were convinced beyond a reasonable doubt of the truth of the charge against him. We regard this as true, even though it be considered a case in which reasonable minds, even if trained in law and the determination of questions of fact, might differ upon the
The judgment of the district court is
Affirmed.