40 Neb. 312 | Neb. | 1894
The plaintiff in error, Michael Lamb, was accused by information filed by the county attorney in the district court, of the crime of grand larceny, committed by feloniously stealing and carrying away “one black registered sow, with white points, with nick in left ear, named Black Queen, register number 13770 S,” of the value of $75, of the personal property of one J. C. Hardman. The accused was convicted, and the value of the sow was fixed by the verdict at $25. On the trial the state was permitted to introduce in evidence, over the objection and exception of the defendant, a certificate of the registration of the pedigree of the sow in question, which certificate purported to be signed by Ira K. Alderman as secretary of the Standard Poland-China Record Association of Maryville, Missouri, and authenticated with the seal of said association. The admission in evidence of this paper or document is urged as a reason for a reversal of the case. It would have been better had the county attorney not inserted in the information the allegation as to the registration of the animal, as such averment was not essential to the validity of the information. Had it been omitted, the state would not have been called upon to prove the pedigree of the sow; but having alleged the same, it became a part of the description of the property, and therefore it was incumbent on the prosecution to establish it, by competent evidence, substantially as averred. That the certificate introduced was incompetent to prove the fact of registration, it requires no argument to show. We have been cited to no case which holds such a certificate is admissible, and we do not believe auy such can be found. But the accused was not prejudiced by the ruling, since it had already been established by other proof that the sow was a thoroughbred Poland-China, and that she was a duly registered animal, and no testimony was introduced or offered by the defendant to dispute that fact.
Another reason urged for reversal is that the evidence fails to sustain the charge of larceny. The testimony on the part of the state tended to establish the following facts: The complaining witness, J. C. Hardman, and the defendant were neighbors, their farms being less than a mile apart. The sow in controversy was owned by Hardman, and had either escaped from his pasture, or had been let out. Afterwards, on a Sunday in September, 1891, the sow came to the premises of the defendant, and during his absence from home R. L. Nickerson and William Collins, employes of the defendant, and who resided with him at the time, drove her into the defendant’s hog lot, where she remained until his return home that evening, when the defendant was informed what had been done. Although it was known to the defendant, and the other parties, that the animal belonged to Hardman, lie' was not informed that she was in defendant’s possession, but was kept until Thursday night of the same week, when about 11 o’clock the defendant Lamb, Nickerson, and Collins loaded her into defendant’s wagon, and with his team she was taken by Collins and Nickerson to the farm owned by Collins’ father, some four or five miles distant, where she was left until she was subsequently discovered and claimed by her owner. It further appeared in evidence that the sow was taken to the Collins farm to prevent the owner from finding her, and that it was agreed between Lamb, Collins, and Nickerson, prior to the removal of the animal, that all should share in the proceeds whenever the same should be sold. The facts, of which the above is only a brief summary, were testified to positively by both Collins and Nickerson. There is in the bill of exceptions testimony of other witnesses for the state tending to connect the accused with the transaction. While it is also true that the
There is testimony in the bill of exceptions from which the inference can be drawn that the intention to misappropriate the sow existed at the time the plaintiff in error first ascertained that she was on his premises. The witness Nickerson testified that he had a conversation with Lamb the day the animal was turned into his enclosure. The witness details the conversation thus : “ When he [defendant] came home—I don’t know just how it came up, but I told him that there was one of Mr. Hardman’s sows in the pen. He wanted to know how it came there, and I told
Objections are made to the ninth and tenth paragraphs of the instructions of the court, which read as follows:
“9. You are instructed that if you believe from the evidence beyond a reasonable doubt that the defendant took the animal mentioned in the information into his possession, or found it running with his stock, and at the time he so took it, or found it, knew it was not his own, and that he then and there intended to steal and convert it to his own use, and to deprive the owner of his property, whoever he might be, and at the time took possession of the animal and held such possession with such intention, this would amount to the crime of larceny, provided you find all other material allegations of the information proved by the evidence beyond a reasonable doubt.
It is insisted that these instructions are inapplicable to the evidence, and therefore were misleading. This objection is not well taken. They were based upon the testimony in the case. The further objection is made to the ninth instruction, that it omitted to inform the jury that the plaintiff in error could not be convicted, unless, at the time of the conversion, he knew, or had the means of ascertaining, who was the owner of the property, and the case of the State v. Boyd, 32 N. W. Rep. [Minn.], 780, is cited by counsel in support of the proposition. That was a prosecution for larceny against the finder of lost property, and the court held that “it is not necessary that the finder should know t who the owner is, but he must have such means of inquiry on that subject as. to give him reason to believe that, with reasonable effort on his part, the owner will be found.” That decision was based upon a statute of Minnesota, which makes a person who finds lost property, “under circumstances which give him knowledge or means of inquiry as to the true owner,” guilty of larceny, if the finder appropriates such property to his own use, or to the use of another person who is not entitled thereto, without first having made every reasonable effort to find the owner and restore the property to him. In this state we have no such statute, hence the case cited is not an authority upon the question under consideration. Whether
“ 1. You are instructed that while the testimony of witnesses who claim to be accomplices with the defendant in the commission of the offense charged is received in evidence, in determining the weight to be given to such testimony, the jury should use great caution, and unless the testimony of Robert Nickerson and William Collins is corroborated by other evidence in some material point in issue, it would be dangerous and unsafe to convict upon such evidence, and you are at liberty to disregard it entirely.”
This request to charge was properly refused. A person may be convicted of a crime upon the unsupported testitimony of an accomplice if such testimony is true. The rule as to accomplices as witnesses was accurately stated by the twelfth instruction given by the court on its own motion, in the following language: “ While it is a rule of law that a person accused of crime may be convicted upon the testimony of an accomplice or accomplices, still, a jury should always act upon siich testimony with great care and caution, and subject it to careful examination, in the light of all the other evidence in the case, and the jury ought not to convict upon such testimony alone, unless, after a careful examination of such testimony, they are satisfied beyond a reasonable doubt, of its truth, and that they can safely rely upon it.” This instruction was doubtless taken from Sackett’s Instructions to Juries, and stated the correct rule. (Olive v. State, 11 Neb., 3.)
We are unable to discover any prejudicial error in the record, and the judgment is
Affirmed.