92 Neb. 298 | Neb. | 1912
Lead Opinion
Defendant was convicted in the district court for Richardson county of the burglary of a railroad car in the yards of the Missouri Pacific Railway Company, in Falls City, and sentenced to a term in the penitentiary of not less than one nor more than ten years. From such conviction he prosecutes error to this court.
Plaintiff in error, who will be designated as defendant, in his brief presents and argues five specific grounds for reversal, which we will consider in the order in which they are presented. Upon the argument at the bar, counsel argued a further ground that the evidence was insufficient to sustain the verdict. This will also be considered in its order. The information charges that defendant “did, on or about the 30th day of July, A. D. 1911, in the county of Richardson and state of Nebraska, aforesaid, then and there being, then and there a railroad car of the Missouri Pacific Railway Company, a corporation duly organized under the laws of the state of Missouri, then and there being, wilfully, maliciously, forcibly, unlawfully, burglariously, and feloniously did break and enter, with intent the goods and chattels in said railroad car contained * * * to steal,” etc.
When arraigned, defendant first pleaded not guilty, but It'.ier was granted leave to withdraw this plea and file a
“(2) Because the Daylight Burglary Act is unconstitutional, in that it is broader than its title.” The title to' the act (Senate File 150, laws 1905, ch. 184) reads: “An act to provide for the punishment of persons guilty of breaking and entering buildings of all characters, with intent to commit any felony, or with intent to steal property of any value, and to repeal sections 48 and 53 of the criminal code of Nebraska, except as to offenses heretofore committed thereunder.” Section 1 of the act proAddes: “If any person shall wilfully, maliciously and forcibly break and enter into any dwelling house, kitchen, smokehouse, * * * station-house or railroad car, with intent to * * * commit any felony, or with intent to steal property of any value, every person so offending shall be punished by imprisonment in the penitentiary,” etc. It is hoav contended that a railroad car is not within the title to the act for the reason that it is not a building; and numerous definitions are cited in support of this contention.
Is the statute under which the prosecution is brought invalid because in violation of the provision of section 11, art. III of the constitution, that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title?” The question is whether the subject of legislation is clearly expressed in the title. The subject is defined in the title of the act as “breaking and entering buildings of all characters,” with intent to commit felony
“(3) Because the corpus delicti of the crime was not proven.” Defendant contends that there is no proof in the record showing that a crime was committed within the jurisdiction of the court; that is to say, that there is no proof that the car was broken into in Richardson county. The car was sealed in Kansas City, Missouri, which is about 100 miles distant from Falls City, only about four miles of that distance lying within Richardson county. Tt was sealed in Kansas City July 27, and reached Falls City on the evening of July 29 or the morning of July 30. The evidence of the state shows that, when the car was first observed by the agent of the railroad company, the seal was broken. Hence, it is contended that there is no evidence to show that the seal may not have been broken and the car entered before it reached Falls City. The trouble with this contention is the evidence shows that the only thing taken from the qar was one box of merchandise, which was found in the weeds close to the car, and the testimony of the witness Kendrick, who was a detective in the employ of the railroad company, shows that some time along in the night- following defendant’s preliminary examination defendant stated to him that “Sheldon (who was jointly informed against with defendant) broke the seal with a piece of iron, and Mr. Cantley (another detective in the employ of the-railway company) asked him if it was a brake shoe, and he said, 'I believe it was;’” that the witness then asked him, “What was you doing there?” and he said, “I was looking around to see if any one was coming;” that witness then said, “You were looking out, were you?” and he answered, “You can call it what you please.” This testimony by the witness Kendrick is assailed upon the ground that, at the time this admission is alleged to have been made, the circumstances under which defendant is alleged to have made the ad
“(4) Because the jury found Hardin guilty of burglary; there being no such offense in the Nebraska criminal code.” Counsel relies upon In re McVey, 50 Neb.
“(5) Because the admissions of the defendant to the special agent of the railroad Avere obtained under threats.” This assignment is disposed of by our discussion of assignment No. 3.
This brings us to the contention made at the bar that the verdict is not sustained by the evidence. This contention must also be held adArersely to defendant. The evidence sIioavs without question that Sheldon entered the car in the afternoon, and threw the box of merchandise out into the weeds; that during the evening of that day he and Carlson and defendant went together to the place where this box had been thrown by Sheldon; that Sheldon then took some of the property out of the box and carried it aAvay. It is true all three of the witnesses say
The evidence as to defendant’s participation in tin burglary of the car, outside of his alleged admission to the witness Kendrick, is not conclusive nor very satisfactory, but, when taken in connection with the admission testified to by Kendrick, corroborated to some extent at least, as conceded, by the witnesses McFarland and Aldrich, we think it was sufficient to sustain the verdict.
Upon consideration of the whole case, we feel that the defendant is probably guilty. The jury who heard the testimony and saw the witnesses have so found. The learned trial court, who also had the advantage of observation, which is denied to ns, sustained the verdict. Under these circumstances, the judgment of the district court must be, and it is,
Affirmed.
Dissenting Opinion
dissenting.
Section 251, criminal code, provides: “This code and every other law upon the subject of crime which may be enacted shall be construed according to the plain import of the language in which it is written, * * * and no person shall be punished for an offense which is not made penal by the plain import of the words, upon pretense that he has offended against its spirit.” To call a rail
Dissenting Opinion
dissenting.
I have carefully read all the evidence. There are 156 pages in the bill of exceptions besides the exhibits. After a careful consideration of the testimony, I do not find it sufficient to sustain a verdict. To understand the evidence, it is necessary to quote from the testimony.
L. L. Aldrich, the chief of police, testified to finding a box car open and goods taken out and scattered around. A pasteboard box about 2-J feet long by 15 to 18 inches wide was found broken open in the weeds close by the car. There were packages of tea and other articles in the neighborhood of the box. There was an invoice bill, “Exhibit A.” When the goods were checked up according to this invoice bill, there was a shortage. The things gone were shoes, a fountain pen, and a set of knives hud forks. There was a railroad bill accompanying the bill of lading. The chief of. police and his assistant found shoes in the City Hotel. They were in the room occupied by Thomas Sheldon. There was a shoe box and fountain pen and a corset cover, ten boxes of tea, and other articles. When going down to the car Aldrich met “Tom Sheldon and Carlson 'coming up between Seventh and Eighth streets on Stone street.” He testified, “As I came down
Joseph Ridley, a locomotive fireman, testified that when he went to get his engine that morning, and at just about the middle of the stockyards, he saw and picked up a little box containing a set of silver knives and forks. It was southeast of the Missouri Pacific depot, the direction in which the stockyards lay and where the road ran.
R. R. McNulty testified that the defendant was drunk that night; that the defendant was out in the mudhole and staggered around; that the defendant walked up to where the men were near the car that was open, and then staggered into the mudhole. It does not seem likely he would have done this if he had been guilty.
James Kendrick, the detective in the service of the railroad company, testified in a way that was unsatisfactory. He could not remember whether he was sworn at the preliminary. He seemed to have so many cases on hand that lie got confused. There were three cases — Hardin, Sheldon, and Carlson. He could not remember whether he had talked with the defendant. He was not certain of anything, except that the defendant told him that he had been in the penitentiary. He was not sure what he had testified to before; and he might have testified that the defendant told him that he saw the seal broken, and then he might not. He denied testifying at the preliminary examination that the defendant had told him that “these
One Ruezsegger testified that he was the clerk at Kansas City, but Avould not undertake to say where the seal of the car Avas broken; that the car would stop at several points between Kansas City and Falls City.
Dennis O’Connell, the seal clerk, testified that he did not know whether the car had been in the Kansas City yards.
L. L. Aldrich was recalled as a witness for the state, and testified that the defendant said that he was there Avhen the car was opened, and that Tom Sheldon broke the seal; and he also testified that the defendant said that Tom Sheldon took the goods put of the car.
James McFarland testified that the defendant told him that he did not break into the car, but that Sheldon broke into the car.
Thomas Sheldon testified as a witness for the defendant
Albert Carlson testified that he and Tom Sheldon went doAvn to the depot about 2 o’clock in the afternoon, and that Hardin was not with them, and they did not see Hardin until 7 or 8 o’clock that evening; that he (Carlson) and Hardin did not take anything from the box; that they went up town and Hardin went home; that Tom Sheldon went into the car and told him he was looking for a fine suit of clothes, and that when the stuff was taken out of the car Hardin “was not around there at all.”
O. S. Larson testified that he was the gang foreman at the Pacific shops, and that the defendant worked for
S. A. Moore testified to the same thing — that Hardin operated a drill press and worked that Sunday and up to the day of his arrest, that he worked all that Sunday in the Missouri Pacific shops.
The defendant Hardin testified, that he boarded at Gillespie’s hotel; that he met Sheldon that night on Stone street, and that Carlson told him that “he had some stuff planted and he wanted to go and get it;” that he met Sheldon and tried to get Sheldon to pay him $5 that he owed him; that Sheldon said, “Come on, let’s go down to the depot, I got some shoes down there;” that when they got down to the depot they were .still arguing about the $5, and that Sheldon turned off and went down the track and went over in the weeds and got a box and broke it open; that Carlson told him not to do that; that they were not going to have anything to do with it; that he saw Sheldon put the shoes in his bosom, and that they then went to the Gillespie hotel; that he did not take any of the stuff down at the depot; that he did not stand guard there; that it was Sunday evening, and they all had their coats on; that Cantley was the drunkest; that Cantley put his leg on his and leaned over onto him, and promised that he would see the master mechanic and would see that he did not lose his job.
The defendant admitted being in the penitentiary in Wyoming for passing a fraudulent check. He seems also to have been in the penitentiary in Texas because of a shooting case, and he testified that he proved by several witnesses that the man in Texas shot the first shot at him, and that he then shot in self-defense. He was a bookkeeper in the penitentiary in Wyoming, and received his pardon for good conduct.
Dissenting Opinion
dissenting.
I have read the evidence in this case, and am of tin-opinion that it falls far short of proving plaintiff in error guilty of any crime.