13 Neb. 308 | Neb. | 1882
Lead Opinion
As shown by the brief of counsel for the prisoners, four points seem to be relied on for obtaining a new trial in this case. The important one, however, and the one most relied on is the first, viz., that there was a fatal variance between the allegation of the indictment and the evidence as to what was stolen.
The indictment charged the larceny of “ a cast-iron balance-wheel of the value of one hundred and fifty dollars.” The point of alleged variance lies in the fact that, in order to facilitate its removal from the place where found, and disposition of it to their use, the prisoners broke the wheel
The evidence shows the wheel to have been of very great weight, probably considerably over two thousand pounds; its removal, therefore, to the place where the prisoners sold it, was a somewhat difficult task, but was effected the more easily, and with less chances of detection by destroying its character and identity. They therefore, resorted to the scheme of breaking it in pieces. Now there is no rule of criminal law that we are aware of by which such destruction of an article stolen can advantage the thief if, fortunately, he chance to be discovered. It ought really to be held to aggravate the crime, for, although the owner may discover and regain the material of which the article was composed, its chief value to him is forever gone.
Counsel would have us say that, although it is true that when the prisoners set upon this property with the felonious design of converting it to their own use, it was a shapely mass of iron — in form a wheel — and as such worth a hundred and fifty dollars, yet inasmuch as in order to enable them the more successfully to carry out that design they changed entirely its form, and in doing this reduced its value to that of old iron merely, and less than thirty-five dollars, they must either go entirely acquit, or suffer only the comparatively mild penalty provided for petit larceny. Than such a ruling as this would be, a more striking travesty upon the criminal jurisprudence of a state could not well be imagined.
Let us see, for a moment, how such a rule would operate as to another kind of property. For instance, a thief
Nor is the case of the prisoners here different in character from that of the supposed thief. The destruction of the wheel, like that of the watch, was a part of the act of taking, and was a mode of converting it to their own use. The felonious intent, which is the gist of the offense, was present, prompting the act, and whether the property were taken carefully so as to preserve its form and value intact, or violently so as to destroy or greatly injure it in respect to these qualities, can make no sort of difference as to the character of the offense. The article as it was at the inception of the taking must govern in determining the degree of criminality that attaches to the act.
As to the asportation or carrying away of the wheel, which is another necessary ingredient of the alleged offense, the rule is, that the least removal of it by the prisoners from the place where they found it was sufficient. 2 Broom & Had. Com. (Am. Ed.), 514. 3 Greenleaf on Ev., Sec. 154. Even if the removal were but a hair’s breadth, it Avill do. Harrison v. The People, 10 Am. Repts., 517. And we think such removal might be properly inferred from the seizure of the Avheel, the mode of breaking it, and the subsequent disposition made of its parts.
{Another point that seems to be relied on by counsel for the prisoners is, that one of them supposed the wheel belonged to a person who owed him for labor. Such a supposition, even if it Avere true, Avas neither a justification nor an excuse. The law does not permit a creditor to make collection of what is due him by a larceny of his debtor’s goods, Eor these reasons the seventh instruction to the jury, the only one now complained of, Avas not erroneous.,
The prisoner Dahl was a witness, and testified in his own behalf. As tending to impeach his credit with the jury, the record of his conviction for obtaining money under false pretences was introduced on behalf of the state. It is now urged as error, that the jury were not instructed that this record “should not be considered by them as against the defendant Gettinger,” who was also a witness. While such an instruction would have been proper enough,
Finally, it is urged that the finding of the jury upon the question of the value of the wheel was unwarranted by the evidence. This is true. The evidence showed its value to be not less than one hundred and fifty dollars, while the jury fixed it at forty only. This, however, was without prejudice to the prisoners, and is not a ground for reversing the judgment, which must be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting.
I am unable to concur in the judgment of affirmance in this case for the following reasons: First, The plaintiffs in error were indicted for the larceny of a balance-wheel owned by one Alonzo "W. Shepherd. The testimony tends to show that one, or perhaps two, of the arms of this wheel were broken at the time Shepherd left the same at the foundry in 1874. Is it not somewhat remarkable that Shepherd should bring the wheel from Cass county, a distance of many miles, and take it to a fowndry ? And it is pretty clear that it was taken there because it was necessary to have it recast before it was safe as a balance-wheel. After the foundry was removed, the wheel lay partly buried in the earth for a number of years before it was carried away by the plaintiffs in error, and had ceased to be of any value except as old iron. And this in substance is the tes
The testimony of Shepherd, that' the reason he took the wheel to the foundry was because it was near his residence, and it was inconvenient to leave it at such residence, is not very satisfactory, and fails to furnish a sufficient reason why he should leave an imperfect balance-wheel at a place where he seems to have had no right, and where it was proposed to permit it to remain for an indefinite period.
Second, The jury found the value of the property to be forty dollars. The testimony as to the value of this property as a wheel fixed it at $150. The jury, therefore, must have found that it was valuable only as old iron. The value of old iron per hundred is proved to be from fifty to seventy cents per hundred pounds, and this testimony is not denied. The exact weight was not proved, the testimony showing the weight to be from 1700 to 2850 pounds. If we take the highest estimate, at the highest price proved, the value was less than twenty dollars, and the jury could not have found the accused guilty of grand larceny. The judgment of the district court should be reversed and the case remanded for a new trial.