90 Neb. 655 | Neb. | 1912
Plaintiff in error was prosecuted in the district court for Garden county for the crime of burglary, committed on the 23d day of December, 1910, by breaking and entering the dwelling house of D. A. Kingery, with intent to steal certain personal property therein. A trial was had, which resulted in a verdict of guilty, and on the 13th day of May, 1911, he Avas sentenced to imprisonment in the penitentiary for the term of four years. He brings the cause to this court for review by proceedings in error.
After the case Avas called for trial in the'district court-, and after three jurors had been called into the jury box, before they were sworn on their voir dire as to their qualification to sit as jurors, the county attorney asked permission to indorse the name of the sheriff upon the information as a Avitness on behalf of the state. Permission was given, and exception was taken to the order of the court. Said order is uoav assigned for error.
It is contended that, as the statute requires the names of witnesses to be indorsed “before the trial,” the indorsement made at the time stated was after the trial had commenced, and the order was therefore erroneous. There was no showing of prejudice, nor was any postpone
It is next insisted that the evidence does not -sustain the verdict of the jury. Little light is thrown upon the subject, as the brief is apparently limited to the contention that malice and forcibly breaking and entering are not shown. The evidence discloses that when the family residing in the dwelling house left it in the morning they carefully closed the doors; that upon their return in the evening they found that the house had been entered and articles of value stolen therefrom. If plaintiff in error is guilty of the theft of the articles said to have been stolen, there can be no reasonable doubt as to legal malice, or the breaking and entering. Owing to the importance of the case, we have carefully read all the bill of exceptions, as well as the abstract. The weight of the testimony was for the consideration of the jury. While there are some features of the case which, to the mind of the writer, are unsatisfactory, yet there Avas sufficient, if believed by the jury, to sustain the verdict. That the dAA'elling house was broken into and certain trunks broken open and articles of small value taken, there seems to be no doubt. One of the principal contests upon Avhich there is a conflict in the evidence is as to the identification of certain coins found on the person of plaintiff in error at the time of his arrest. They were positively identified as
We find no prejudicial error in tbe proceedings. Tbe judgment of tbe district court is therefore
Affirmed.