58 Neb. 297 | Neb. | 1899
An information was filed in the district court of Douglas county in which the plaintiff in error was charged with the statutory crime of larceny from the person. The amount alleged to have been so stolen was stated as follows: “Forty-five dollars in money, of the value of forty-five dollars.” The accused, who had been arrested, was arraigned, entered a plea of not guilty and was placed on trial. The trial jury returned a verdict of guilty, which was in terms as follows: “We, the jury, duly impaneled and sworn to well and truly try and true deliverance make between the state of Nebraska and Alice Holmes, the prisoner at the bar, do find the said defendant guilty of larceny from the person, as she stands charged in the information.” Sentence was pronounced against the accused of confinement in the penitentiary for a designated term.
It is urged in an error proceeding to this court that the verdict was insufficient, in that it was general and did not find the value, of the property or thing stolen, and being so defective furnished no basis for a judgment or sentence. The section of the Criminal Code under which the prosecution was instituted reads as follows: “Every person who steals property of any value by taking the same from the person of another without putting said person in fear by threats or the use of force and violence, shall be deemed guilty of grand larceny, and shall, upon conviction thereof, be punished by confinement in the penitentiary for not less than one nor. more than seven
We are entirely satisfied with the reasoning employed in the opinion from which we have just quoted, and think it stated the correct rule. In the case of McCoy v. State, 22 Neb. 418, the prisoner was tried on the charge, and declared guilty by general verdict, of the crime of larceny as bailee and no value of the property was stated in the verdict. In an opinion of this court it was said, after quoting section 488 of the Criminal Code: “This provision of the Code, although clearly applicable to the case at bar, was wholly ignored. Its provisions are mandatory and cannot be evaded. The verdict, therefore, conferred no authority upon the trial court to enter a judgment or sentence by which plaintiff in error Avas convicted of felony.” (See, also, McCormick v. State, 42 Neb. 866; Fisher v. State, 52 Neb. 531.) That the verdict in the case at bar lacked an essential element Avas not presented by the assignments in the motion for a new trial, or by any plea in the trial court. The attention of that court does not seem to have been challenged or directed to the fact of the defectiveness of the verdict; it is, however, of the assignments of the petition in error. It is argued for the state that the record being as we have stated, no advantage can now be taken of the -matter of the lack of finding in the verdict. The trial court might have set aside the verdict of its own Audition, if on examination it had discovered prejudicial error. (Weber v. Kirkendall, 44 Neb. 766.) We have no hesitancy in saying that in a case where there has been a sentence to imprisonment in the penitentiary, or sentence to punishment for a crime of the grade of a felony, this court will examine the question, if raised by the assignments of the petition in error,
Reversed and remanded.