58 Neb. 320 | Neb. | 1899
James Philamalee was prosecuted in the district court of Cedar county under an information charging the crime of robbery, and upon the trial was convicted of grand larceny and sentenced to imprisonment in the penitentiary for the period of one year. He has brought the record here for review, alleging as grounds for reversal that certain instructions were erroneous, and that the evidence is insufficient to sustain a conviction.
Complaint is made of the following definition of larceny contained in the seventh instruction: “Larceny is the wrongful and unlawful taking and carrying or leading away of a thing, without claim of right made in good faith, and without the owner’s consent, with the intention of permanently converting it to a use other than that of the owner.” The criticism made upon this instruction is that it omits the element of felonious intent. This court has more than once said, in effect, to constitute larceny the taking must be with felonious intent, and an instruc
The tenth instruction is assailed, which reads as follows: “The jury are instructed that when the defendant testified in this case he became as any other witness, and his credibility is to be tested by, and subjected to, the same tests as are legally applied to any other witness, and in determining the degree of credibility that shall be accorded to his testimony the jury have a right to take into consideration the fact that he is interested in the result of this prosecution, as well as his demeanor upon the stand, and the fact that he has been contradicted by other witnesses.” The vice imputed to this portion of the charge is that it advised the jury they were at liberty, in weighing the testimony of the accused, to take into consideration his interest in the result of the prosecution. This court is committed to the doctrine laid down in the portion of the instruction just quoted. (Johnson v. State,
The jury found the value of the property stolen to be |36.20. It is urged that this sum may have been fixed by a consideration of a preponderance of the evidence, and that the court should have instructed the jury that the accused was entitled to a reasonable doubt in determining the value of the property. They were advised by the charge of the court what the material allegations of the information were, and told that the state must prove every one of them beyond a reasonable doubt. . If the defendant wished the jury especially instructed that he was entitled to the benefit of a reasonable doubt on the question of the value of the property, he should have tendered an appropriate instruction announcing the proposition. This he did not do, and he cannot now predicate error upon the failure of the court to instruct the jury upon that point. (German Nat. Bank of Hastings v. Leonard, 40 Neb. 676; Barr v. City of Omaha, 42 Neb. 341.)
We have read with considerable care'the evidence contained in the bill of exceptions, and while the same is conflicting, that introduced by the state was sufficient to establish every element of the crime of grand larceny. No reversible error being disclosed, the judgment is
Affirmed.
