82 Neb. 406 | Neb. | 1908
William H. Holmes, hereafter called the defendant, was" prosecuted in the district court for Douglas county for a violation of section 121 of the criminal code, which defines the crime of embezzlement. The charging part of the information on which he was tried reads as follows: “That on the 27th day of February, in the year of our Lord, one thousand nine hundred and seven, William H. Holmes, late of the county of Douglas aforesaid, in the county of Douglas, and state of Nebraska, aforesaid, then and there being in said county, and then and there being a duly admitted attorney at law to practice in the various courts of the state of Nebraska, and the said Douglas county, and then and there being the attorney at law for
•Defendant’s principal contentions are that the district court erred in giving the first paragraph of his instructions to the jury because the exception found in the statute as to apprenticeship and age is not properly negatived thereby; that the clause of the information which relates to this exception is disjunctive, and is therefore wholly insufficient to charge the offense of which he was convicted; and that for this reason the district court erred in not quashing the information, and in overruling defendant’s motions in arrest of judgment and for a new trial. We will dispose of these assignments of error together, for what may be said as to any one of them applies with equal force to all of the others.
The section of the statute on which this prosecution is founded reads in part as follows: “If any clerk, agent, attorney at law, servant, factor or commission agent of any private person or any copartnership, except apprentices and persons within the age of eighteen years, * * * shall embezzle or convert to his own use * * * any money,” etc. Criminal code, sec. 121. The words of the charge first above quoted, so far as material to this inquiry, are as follows: “William H. Holmes, * * * being a duly admitted attorney at law to practice in the vhrious courts of the state of Nebraska, and of said Douglas county, and then and there being the attorney
It is also defendant’s contention that the court erred in giving instruction No. 2, on his own motion, and the particular criticism of this instruction is that in speaking of the presumption of innocence it uses these words: “This presumption partakes of the nature of evidence,” instead of “This presumption is evidence.” The part' of the instruction complained of reads as follows: “The law presumes the defendant innocent, and this presumption partakes of the nature of evidence, and so continues throughout the trial until said defendant has been proved guilty by the evidence, beyond a reasonable doubt.” This instruction has our approval in McVey v. State, 55 Neb. 777, and is found in Good and Corcoran, Instructions to Juries, p. 260. To our minds the objection is too technical to merit serious consideration.
Defendant further insists that the court erred in giving instruction No. 3, on his own motion, because the statute on which the prosecution is based is not quoted in full. We find that the substance of the statute is stated in the instruction, and what was there said was sufficient to enable the jury to understand the' nature of the charge against .the defendant. This was all that was necessary. It was said in Davis v. State, 51 Neb. 301: “While it is proper in a criminal case in defining a crime in an instruction to use the language of the statute descriptive of such crime, yet, if the import of the language used in the instruction is the same as the statute, an instruction will not be held erroneous because the language employed by the court is different from the language of the statute.” In Mills v. State, 53 Neb. 263, we held that “an instruction which consisted of quotation of the main
Instruction No. 12, given by the court on his own motion, is assailed as erroneous. This instruction defines a reasonable doubt, and is, in substance; the same as that given and approved in Willis v. State, 43 Neb. 102, Barney v. State, 49 Neb. 515, Carrall v. State, 53 Neb. 431, and in a long line of decisions ending with Clements v. State, 80 Neb. 313. The instruction as given in the foregoing cases has been often assailed because it contained the words: “You are not at liberty to disbelieve as jurors, if from all of the evidence you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” This clause has been frequently criticised by us, and for this reason it is apparent that it was left out of the instruction complained of, and now counsel complains because of such omission. We think the criticism without merit, and that the instruction affords no ground for a new trial. The defendant also contends that his motion for dismissal was improperly overruled, for the reason that no evidence was offered to show that he was not an apprentice, and not within the age of 18 years. As above stated, proof that the defendant was an attorney at law duly admitted to practice in all of the courts of this state, and was acting as such attorney for Joseph Schwenk at the time he secured the possession of the money, which it is alleged he embezzled, is sufficient proof that he was not an apprentice. As to the question of his age, it may be said that, in addition to the fact that our statutes provide that no person shall be admitted to practice law in the courts of this state who is not 21 years of age, it appears from the record that one of the witnesses for the state testified that the defendant had been continuously engaged in the practice of his profession for several years
It is further contended that defendant’s counsel were guilty of misconduct during the trial of the case, sufficient to entitle him to a new trial. The complaint is made that the attorneys who represented the defendant in the trial court stipulated that certain letters and correspondence should be admitted in evidence. This correspondence had to do largely with the collection of the money embezzled, and was carried on between the defendant and his associate counsel at Sioux Falls, South Dakota. It cannot be denied that this correspondence, which formed the basis for the collection of the money afterwards embezzled by the defendant, was competent and material evidence. It is true that it could have been brought out through the medium of witnesses instead of by stipulation, but we know of no rule which prohibits counsel for one accused of crime from stipulating for the introduction of competent evidence in this ■ way. The record contains no showing that either the defendant or his counsel was misled in entering into the stipulation, and no reason is given why they should be released from its terms. Again, it is not shown that the substantial rights of the defendant were prejudiced thereby, and we are satisfied that this matter offers no substantial ground for a reversal of the judgment herein.
Finally, it is contended that the county attorney Avas guilty of misconduct in his address to the jury. It appears -that no objections were made to the remarks of the prosecuting attorney or any portion of his argument. Hence, there was no ruling of the court had thereon. In Reed v. State, 66 Neb. 184, it was said: “A party desiring to take advantage of the misconduct of opposing counsel in the argument of a case should seasonably object to
It is further claimed that the language used by the county attorney was to the effect that, while a student at a university, defendant had learned to drink and live in a riotous manner; that two witnesses called by the defendant had testified of having had trouble with .him, and insinuated that the nature of the trouble could be imagined as similar to the charge on which the defendant was on trial; and that he personally knew the defendant, and considered him a bright and capable young man, and perfectly sane. The county attorney filed an affidavit in which he disputed the truthfulness of these charges, and fully set forth the language which he used in his argument, and which showed that his remarks were based upon the evidence and the arguments of defendant’s counsel. This was corroborated by the affidavit of the deputy county attorney. The matter was thus submitted to the trial court, and the finding thereon Avas against the contention of the defendant. It was ruled in Cunningham v. State, 56 Neb. 691, in Clark v. State, 79 Neb. 473, and in Harris v. State, 80 Neb. 195, that when such question is presented to the trial court by a motion for a new trial, and Avhen upon affidavits and other evidence it is determined adversely to the defendant’s contention, the judgment of the district court will not be disturbed unless it is unsupported by the evidence, and is clearly wrong.
We have thus disposed of all of the defendant’s contentions, and, finding no error in the record, Ave are of opinion that the judgment of the district court should be affirmed.
We are asked, however, for the reason that the defendant has been unable to furnish bail, and has been confined in the jail in Douglas county since the time of his trial, to reduce or modify his sentence; and, being satisfied that the ends of justice will be attained thereby, it is ordered that the sentence and judgment of the trial court be modi
Judgment accordingly.