292 N.W. 603 | Neb. | 1940
Plaintiff in error, hereafter referred to as the defendant, was convicted of the crime of cattle stealing, and sentenced to serve from three to five years in the state reformatory.
The record shows that on November 22, 1938, one Addie Hull purchased some cattle at Fairbury, Nebraska, which were transported to Pawnee City, Nebraska, by trucks during the night of the same day. The cattle were unloaded at the Fink stockyards shortly after midnight. On the following morning four of the cattle were missing. They were described as a white-faced cow, weight 1,165 pounds; a white-faced polled heifer, weight 845 pounds; and two small red steers, weighing 1,586 pounds. It was subsequently dis
The record shows that after Addie Hull unloaded the cattle which he himself had hauled from Fairbury, he went to a restaurant, and there at about 2 a. m. saw defendant in company with Keith Avery and one Virgil Ireland. Defendant’s empty truck was parked in front of the restaurant.
The record shows that the sheriff of Pawnee county requested the sheriff of Johnson county to take the defendant into custody, and in response to that request Edgar Mahoney, sheriff of Johnson county, on November 29, 1938, called defendant on the phone and asked him to come to Tecumseh. Defendant and his wife thereupon went to the sheriff’s home in Tecumseh, at which time the sheriff walked out to the car and said: “Paul, you are in trouble, aren’t you?” The sheriff says he answered: “Yes;” while the defendant and his wife testify that no reply was made. Defendant was thereupon taken to the courthouse, where a statement was made in which he confessed his guilt. Much of the record is taken up with testimony as to the admissibility of this confession in evidence.
When the confession was made it appears that, in addition to the defendant and his wife, there were present Edgar Mahoney, sheriff of Johnson county; M. J. Donahue, sheriff of Pawnee county; Raymond B. Morrissey, county attorney of Johnson county; and Esther Wolford, stenographer in the county attorney’s office. The questions were asked by Morrissey. The questions and answers were taken in shorthand and transcribed by Esther Wolford. The manner of taking the confession was minutely gone into by both the state and the defendant. The record is absolutely devoid
Defendant asserts that the state has failed to prove beyond a reasonable doubt that there was a felonious taking without the consent of the owner. There can be no doubt that the cattle delivered at the Fink stockyards were the property of Addie Hull. Whether the technical custody of the cattle was in Addie Hull or the Fink stockyards at the time of the larceny is not made clear by the evidence. Both Addie Hull and John Fink testified to the loss of the cattle. While it is true that a lack of consent was not shown by express terms, the effect of the testimony is that there was an entire want of consent to the taking. The confession offered in evidence establishes the want of consent to the
The evidence is clearly sufficient to sustain the conviction. The confession as made was undoubtedly true, as the subsequently disclosed facts check accurately with it. Many pertinent facts found to be true would never have been discovered but for the confession. The facts considered with all the other evidence in the record adequately support the conclusion at which the jury arrived.
We have examined other assignments of error and conclude that they are without merit. Finding no prejudicial error in the record, the judgment of the trial court is affirmed.
Affirmed.