51 Neb. 572 | Neb. | 1897
Tlie plaintiff in error was prosecuted in the district court of Burt county, under the proyisions of chapter 77 of the Session Laws enacted during the session of the legislature of 1895, for tlie alleged crime of stealing one steer of the value of $20, the property of one Henry C. SaAvtell, was convicted, and sentenced to confinement in the penitentiary. The case has been removed to this court for review of the proceedings of the trial court.
The first assignment of error to which our attention is directed by the brief of counsel is that the trial court excluded certain of the evidence which it was sought to elicit from Ed Taylor, whén he appeared as a witness on the part of plaintiff in error. The steer the plaintiff in error was charged with stealing was sold by him in Blencoe, Iowa, September 29, 1895, and the testimony which was excluded was of the fact that the witness had been requested by the plaintiff in error to go to the wagon in which the steer had been hauled to Blencoe, and in Avhich it was then standing, to look at it with a view to its purchase, the object of the evidence being to show that the plaintiff in error was openly offering the animal for sale in the market and observing no secrecy in regard to it. The main fact had been proved by other witnesses and was not disputed; hence the rights of plaintiff in error were not prejudiced by the exclusion of the testimony, and there was no available error.
During the progress of the trial it became material to determine the identity of the steel. Whether the one sold by plaintiff in error at Blencoe was the one which had been missed from the herd of Mr. Sawtell was made a material issue, and on this subject there was testimony that the one which Sawtell claimed had been stolen was
It is urged that the court erred in refusing to give in its charge to the jury instructions numbered 5, 6, 9, and 10 of those prepared and requested for the accused. Of these, 5, 9, and 10 were in relation to the steer having been an estray, and to inform the jury that if it came into the possession of the accused as an estray, his subsequent conversion of it to his own use would not be larceny unless he had the intent so to do when he first took possession of it. Whether these instructions properly expressed a rule of law we need not now discuss or decide. While there was testimony to show that the animal alleged to have been stolen escaped from the pasture and possession of its owner, and was not afterwards discovered or returned thereto, and also testimony which might have warranted an inference that it strayed into the pasture of the accused, there was no testimony that the ac
There are further assignments of error, but of such a nature that we do not deem their discussion or decision essential at this time. The judgment of the district court must be reversed and the cause remanded.
Reversed and remanded.