122 Neb. 624 | Neb. | 1932
Upon September 18, 1930, an indictment, properly indorsed “A True Bill,” was returned by the grand jury in Saunders county, charging the plaintiff in error, hereinafter called the defendant, Wencel H. Kirchman, who was the cashier of the Nebraska State Savings Bank, of Wahoo, Nebraska, and another, with intent to deceive, injure and defraud said bank, its officers, and other persons, by executing a release of a mortgage in the sum of $7,500 and discharging the same of record. The defendant filed a demurrer to the indictment, and, upon its being overruled, made application for a change of venue, with a showing in support thereof, and thereafter the state confessed said motion and the district judge directed that the venue be changed to Seward county, Nebraska. Trial was begun upon April 13, and upon April 24, 1931, the jury returned a verdict of guilty, upon which verdict the defendant was sentenced to serve 10 years in the penitentiary and to pay a fine of $2,500.
Defendant prosecutes error to review the record in this court. ■ • The petition in error sets out some 24 allegations of error, each of which has been carefully considered by this court. It is--.especially urged in the brief that the court erred in overruling, the defendant’s demurrer to the indictment, and in the giving of each of the 22 instructions,'and in ref using to give 6 instructions offered by the defendant. . '.It is also urged thát the indictment was not sufficiently specific, definite:: and certain to meet the re
The evidence, which is found set out in two large leather-bound volumes of the bill of exceptions, shows that the defendant, who is 47 years of age, was born at Wahoo, Nebraska, and has always resided there; that he is a married man, with a family, and has been connected with the Saunders County National Bank at Wahoo since he was 17 years of age, starting in as a messenger; that the father of the defendant was president of both the Saunders County National Bank and the Nebraska State Savings Bank up to the time of his death in July, 1924, and was succeeded in that position in both banks by Frank J. Kirchman, uncle of the defendant, who held that office until both banks closed on April 15, 1930; that the defendant was cashier of both banks; that in the Nebraska State Savings Bank, the uncle drew $125 a month as president, while the defendant drew $50 a month as cashier; the uncle drawing $200 as president of the Saunders County National Bank, the defendant drawing $175 as cashier of the latter institution, and both the president and the cashier had sons working in the banks. Each of the banks occupied the same banking rooms, there being no partition between the two banks, but. the Nebraska State Savings Bank, which began business March 17, 1909, had its name in a sign over, one of the wickets in the banking room of the Saunders County National Bank. The defendant and his uncle occupied adjoining desks, and the uncle had a little private room adjoining his desk, and only rarely sat at his desk out in the banking room, and usually transacted his business in his private office.
1. The defendant’s counsel first contends that the demurrer to the indictment should have been sustained, for the reason that the indictment is a mere recital of evi
“On or about the 11th day of October, 1928, said defendants, Wencel H. Kirehman, in the name of W. H. Kirehman, and Frank J. Kirehman, in the name of F. J. Kirehman, acting as officers of said’ banking corporation, with the intent aforesaid, and in the manner aforesaid, unlawfully, wilfully, fraudulently, feloniously, and falsely, did then and there, then and there being, execute a release of said mortgage for the sum of Seventy-Five Hundred Dollars ($7,500) discharging the same of record.”
Defendant insists that this indictment charges an intent to defraud, oh October 11, 1928, by the doing of certain acts performed in 1923, 1924, 1927, and 1928, the date of the commission of some of such acts being more than seven years prior to the return of the indictment, and more than five years prior to the date when it is charged that the crime was committed, and that these acts cannot be disregarded as surplusage, because “An allegation. in an indictment descriptive of that which is essential to the charge therein made is a material allegation and cannot be rejected as surplusage.” 14 R. C. L. 191, sec. 37. See Goodlove v. State, 82 Ohio St. 365, 19 Ann. Cas. 893, 30 L. R. A.
“The accused may demur when the facts stated in the-indictment do not constitute an offense punishable' by the laws of this state, or when the intent is not alleged,-when proof of it-is necessary to make out the offense charged.” Comp. St. Í929, sec. 29-1809.
The aceus'ed was entitled to a plain, concise statement of the charge against him. To allege every material fact leading up to the offense charged required in this case certain allegations, to which objections are laid. This indictment consists of about four - typewritten pages, and sets out, in the greatest' detail, each particular step, terminating with the signing of the release of the mortgage, which act it is charged he did, unlawfully, wilfully, fraudulently, feloniously, and falsely, with intent to defraud. We may grant that the recitations about the giving and recording of the mortgage years before, and the sale of the three $2,500 notes secured thereby, while not a part of the criminal act itself, yet laid the foundation therefor, and together formed the opportunity which he used, to the injury of others. But, is it not to the advantage of the defendant to have all of the facts leading up to the offense charged in minute detail? It is required that such necessary details be set out as will enable the court to pass on the question whether a criminal offense has been committed, and; on the other hand, the law requires that the defendant be informed of such facts as will clearly identify the entire transaction for which he is held to answer.
It may be admitted that perhaps some facts in this long indictment need not have been recited in such great detail; yet is this sufficient ground upon which to found a demand that this court reverse the conviction? “The law books are replete with cases in which defendants have gone free on the basis of some minor defect in the indictment.” 9 Neb. Law Bulletin; 161. -And our legislature has passed an act which will tend to avoid this happening in Nebraska: “No indictment shall be deemed invalid * * * for any other defect or imperfection which does not tend to the.preju
A patient study of this indictment and the briefs, together with each of the authorities cited, leads to no other conclusion but that the substantial rights of the defendant have not been prejudiced in this case by setting out in the indictment each and all of the preliminary details leading up to the criminal act charged therein.
2. The greater portion of the defendant’s brief is devoted to an attack upon each of the 22 instructions given, and the error in refusing to give the 6 instructions offered by the defendant and refused by the court.
Instruction No. 2 sets out in four numbered paragraphs a concise statement of the material and essential elements of the crime charged, which the state must prove to warrant a conviction. Defendant then argues that there is no evidence showing that the defendant intended to or did defraud the Nebraska State Savings Bank, and says:
“The giving of an instruction which submits to the jury the existence or nonexistence of a fact material to the issues in the case on trial, when no evidence has been introduced which would support a finding of its existence, is error for which the judgment may be reversed.” Morearty v. State, 46 Neb. 652.
The citation gives us an approved holding on the point there involved, yet let us examine the portion of the instruction as given which charges that the defendant “made such use of the said banking corporation with the intent * * * to injure and defraud said banking corporation, or with the intent * * * to injure and defraud Daniel Dailey, Frank Dolezal and Martin Thorson, or either of them.” A careful reading of the instruction does not bear out the objection laid against it.
This court holds that it is considered better practice in a felony case to charge the jury, in concise and informal language, exactly what evidence is essential to authorize a conviction, rather than to copy the entire indictment into the instructions. Dixon v. State, 46 Neb. 298; State
3. The defendant had submitted to the trial judge his requested instruction, No. 6, that where the defendant has introduced testimony tending to show his previous good reputation for being an honest, truthful and law-abiding citizen in the community in which he has lived, and continuing for about half a page, and terminating with: “It may be considered as tending to show that a person of good reputation would not be likely to commit the crime charged; to show that a person of good character and reputation is far less apt to commit crime than a person of bad character or reputation.” In the place of this, the court gave instruction No. 12, which was about half as long. The defendant objects to the court’s substituting' its No. 12 for the offered instruction, No. 6, on the ground that instruction No. 6, offered, presented the good reputation of the defendant prior to the time the offense was committed, while the court’s instruction presented an entirely different issue, the good character of the defendant at the time of trial. This court has carefully examined both of these instructions and does not find the error indicated in the one given by the trial judge.
Several approved instructions on good character, embracing practically the language used by the trial court, may be found in 1 Corcoran, Nebraska Instructions to Juries (2d ed.) 359-361. See Strong v. State, 106 Neb. 339; Wakeley v. State, 118 Neb. 346; Linn v. United States, 251 Fed. 476; 16 C. J. 981; Latimer v. State, 55 Neb. 609. It is a well-settled rule that it is not necessary to give an instruction in the exact language offered by counsel, where the same subject is adequately covered by .instructions given by the trial court.
4.' Instruction No. 13 is attacked for stating that evidence was introduced by both the state and the defendant in regard to his general reputation for truth and veracity, and the defendant insists that no one testified that the de
5. Cautionary instructions. Instruction No. 20 was, in brief, that, although the members of the jury might sympathize with those who suffer, yet they were bound by their oaths to administer justice; that no question of misery, sentiment, or sympathy, or anything else, should reside with them; that they must be just to the state and equally just to the defendant. This instruction is attacked by the defendant as an unnecessary lecture to the jury. It is charged that it is an entirely uncalled for and unwarranted caution; that it scolds them about having any sympathy for the defendant; that, by referring to their oaths, and asking them to assist the court, it becomes “a, patent intimation that the court’s idea of justice in this, case was a verdict of guilty.”
In Dinsmore v. State, 61 Neb. 418, a cautionary instruction is set out in full, in which the members of the. jury are told that they are “ministers of justice,” and that “it is absolutely necessary and essential to the preservation: of society that law should be enforced,” and similar objections were made to it as are made in the present case; yet this court, said it was merely a cautionary instruction, which the trial court may, in its discretion,: give or not.; See. Smith v. State, 4. Neb. 277.
In the .trial .of felony .cases,, it may occur that unfairness-.
' “The duty of counsel and the court has now been performed. The counsel ¿ngaged in this case have been untiring in their efforts to bring before you all possible evidence that may aid you in arriving- at the truth. They have ably assisted you in applying the evidence to the facts in’ dispute. The court' has endeavored to rightly advise you in the law, and now there confronts you the final and important duty of pronouncing upon the guilt or -innocence of the defendant. I submit this case to you with the confidence that you will-faithfully discharge the- grave duty-resting fipon you without, upon the one hand', being
This court has carefully examined each of the other alleged errors presented for a reversal of this case, and does not find error therein, including the errors alleged in sustaining a motion to strike out certain evidence several days after it was admitted. The defendant insists that this establishes a bad precedent, and in effect makes a new rule, which would read about as follows: Allow an attorney to “get all you can on the examination of your own witness and before you rest your case have the court strike out that which does not serve your purposes.”
His proposition of law No. 11 reads as follows: “Several days after a state’s witness had left the stand the court sustained a motion of the prosecutor, made at the time he rested his case, to strike as not responsive an answer of the witness given on his direct examination and which was material to the inquiry. This was prejudicial error.”
I Wigmore, Evidence (2d ed.) sec. 19, says: “An objecting opponent is not entitled to treat a ruling as final, and therefore he cannot complain of a subsequent revocation of a ruling, merely in so far as the temporary ad
In a recent civil case, this court condemned the acts of the defendants, who thrust aside both the letter and the spirit of our banking laws, and, with a reckless disregard of the rights of others, engaged in a course of conduct relative to the affairs of the Burton State Bank, the inevitable result of which was the ruination of the bank and disaster to others. Kienke v. Kirsch, 121 Neb. 688.
In a well-written article, telling why Nebraska should adopt the model code of criminal procedure prepared by the American Law Institute, found in 9 Neb. Law Bulletin, 146, is quoted the statement from President Hoover’s inaugural address, as follows: “Every student of our law enforcement knows full well that it is in need of vigorous reorganization; that its procedure unduly favors the criminal. * * * In our desire to be merciful the pendulum has swung in favor of the prisoner and far away from the protection of society.” Nebraska lawmakers have given to this court a provision which clearly provides: “No judgment shall be set aside, or new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.” Comp. St. 1929, sec. 29-2308.
In the case on trial, the defendant admits that he signed the release of this mortgage, but argues that, as he did not read it, and simply signed his name to the release on the line indicated by a relative, he should not be responsible for this act. If pulling the trigger of a supposedly unloaded gun kills, can the actor avoid punishment? No.
Affirmed.