67 Neb. 560 | Neb. | 1903
The defendant was informed against in the district court for Webster county, tried for, and convicted of the crime of robbery, and sentenced to imprisonment in the penitentiary for a period of seven years. I-Ie brings the record of his trial and conviction to this court for revieAV by proceeding in error.
The petition in error assigns three different grounds or alleged errors as reasons for a reversal of the judgment rendered in the trial court: First, it is contended that the court erred in the giving of one of its instructions to the jury which was requested by the state; second, in admitting the testimony of a witness as to an alleged conversation between him and the defendant regarding a method or plan by which the robbery could be committed on the pen-son whom the defendant was convicted of robbing; and, third, that the evidence is not sufficient to sustain the verdict of guilty returned by the jury.
Taking the assignments of error in their order, the instruction complained of will be first noticed. The court, at the request of the state, gave an instruction in which the jury were, in substance, told that the defendant had the right to be sworn and testify in his own behalf, but that in weighing his testimony and in determining the weight which should be given thereto the jury might take into consideration his interest in the result of the trial and his action and demeanor while on the witness stand, and the further fact, if the same was proved (which was admitted by the defendant), that he had been convicted of a felony, and confined in the penitentiary of another state, as affecting his credibility as a witness. It is argued that the instruction is erroneous and prejudicial, because giving undue prominence and weight to the matter touched upon in the instruction, and having the effect of disparaging the standing of the defendant as a witness in his own behalf, and therefore prejudicial. The sixth instruction, given by the court on its own motion, was a general in
Tbe mere fact of repetition is not alone, in every case, reversible error. If the propositions given are correct, and it is clear that the defendant was not prejudiced thereby, nor the- jury unduly influenced in their deliberations in weighing tbe testimony submitted in tbe case, the verdict and judgment will not be disturbed. Hill v. State, 42 Nebr., 503. Tbe instruction complained of can hardly be condemned without overturning the rule heretofore prevailing, and we observe no sufficient reason for such a departure. The instruction excepted to was the only one calling attention directly to tbe defendant as a witness in bis own behalf and announcing a correct rule as to tbe weighing of his testimony by tbe jury. Tbe other instruction announced tbe rule applicable to the testimony of tbe witnesses generally in tbe case who> bad testified, including the defendant. Tbe defendant stood in a peculiar position, and an instruction applicable to bis testimony could be made intelligible only by naming him as a witness to whom tbe rule applied. Tbe instruction in principle is analogous to those which may be given where a witness’s reputation for truth and veracity has been shown
The state was permitted to prove, over the defendant’s objection, that in the late winter or early spring prior to the time of the commission of the offense of which he was convicted, which was December 4, 1901, in a conversation with the witness testifying and one other, in which the parties spoke of there being no bank in Rosemont, where the crime was committed, and that the elevator men, the complaining witness and one other, certainly carried quite a sum of money, and it was a wonder they had not been robbed or held up, the defendant had said, in substance, during such conversation, that it would be an easy matter to hold them up and get their money; that, there being no saloon in Rosemont, and they sometimes having a keg or case of beer, a person could get the croAvd keyed up and slip some knock-out drops in the elevator men’s beer, and when they got a few drops of that down them they would be dead to the world for awhile, and it would be an easy matter to get their money; that if that failed a fellow could hold them up and get their money any way; that he could sand-bag them and hold them up. The robbery was committed by the perpetrator calling the complaining witness, one of the elevator men alluded to in the conversation just referred to, to the door of his residence shortly after dark, and under the pretense that the party had a load of grain at his elevator, induced the complaining witness to accompany the party as though going to the elevator, and when a short distance from his home was struck over the head with a bag of sand or shot, knocked down, and dragged a short distance from the road, where,
Lastly, it is argued that the evidence is insufficient to support the verdict. As a defense, the accused undertook to prove an alibi. To sustain his defense, several witnesses were produced who testified that the defendant was in Dakota county at the time the robbery was committed in Webster county, the two counties being near 200 miles apart. There is evidence of a convincing character that the defendant Avas arrested in Dakota county near the hour of 12 o’clock on the 6th of December, the second day folloAving the commission of the crime, which occurred soon after dark on the evening of the 4th. Some of the witnesses for the defendant fix the time of his arrival in Dakota county on the 3d or 4th of December; possibly some of them a day or two earlier. It is conceded that he had been absent from Dakota county for two or more months immediately . preceding his return early in De
The judgment of the district court is accordingly
Affirmed.
Note. — On tlie 14th day of September, 1862, Dura Villie Libbey — a girl less than ton years of age — was murdered, near the town of Strong, Franklin county, Maine. She was murdered on her way from home to Sunday school. To conceal the crime of rape was the appm-eiit motive for the crime. She was found buried. The turf had. oeen cut with some sharp instrument (apparently a knife) in the form of a trunk-cover. It had been turned up, and an excavation made in the uncovered section. In this hole, the body had been placed. In order to force it into the space, the knees had been stamped upon till