52 Neb. 375 | Neb. | 1897
This was a prosecution, for the crime of larceny, in the district court of Keith county. The information under which the accused was convicted charged that he, on or about the 15th day of February, 1896, in the county of Keith) “unlawfully and feloniously did steal, take, and drive away one cow, color red, branded O (circle) on left hip, and branded O (circle) on left loin,” and of the value of $25, the personal property of the Equitable Farm and Stock Improvement Co. of Nebraska, limited, a Nebraska corporation. The jury found the defendant guilty, and from a judgment which imposed a sentence to imprisonment for the term of twelve months in the state penitentiary, he prosecutes error proceedings.
A motion to quash the information was denied, and this ruling is the first ground urged for a reversal. It is insisted that this motion should have been sustained because the offense is not alleged in the information to have been committed on a day certain, but “on or about” a specified date. The information is not defective for the reason suggested. If, in a prosecution for larceny, it is important that it be alleged in the information the exact date the offense occurred, there is no escaping the conclusion that the state is required to prove the transaction took place at the identical time averred, else the prose
Error is alleged in the overruling of the plea in abatement. It is argued that this plea should have been sustained because the transcript discloses that John H. Cannon, the justice of the peace before whom the complain! was made, and who issued the warrant in this case, was a justice of the peace in and for Lincoln county, and had no jurisdiction of the offense. A sufficient answer to this contention is that the plea in abatement specifically avers that said Cannon was a justice of the peace in and for West Ogallala precinct, Keith county, where he resided, and the demurrer to the plea ■ admitted the truth thereof. Moreover, the transcript, in at least three places, specifically states that said J. H. Cannon was a justice of the peace of Keith county, and the same is not disputed by any other portion of the record, when properly construed, although a statement found in the complaint itself is relied upon to establish, in opposition to the allegation
“Before John H. Cannon, a Justice of the Peace in and for Keith County.
“The State of Nebraska, County of Keith.
“The State of Nebraska v. > For cattle stealing.
of Lincoln county, aforesaid, made in the state of Nebraska, before John H. Cannon, a justice of the peace within and for said county. * * * ”
The words “of Lincoln county” are merely descriptive of the person who made the complaint, and should be treated as surplusage. It is very evident that the words “within and for said county,” appearing in the body of the complaint, refer to the county mentioned in the caption and in the venue, namely, Keith county, in the state of Nebraska. The objection is too technical and devoid of merit to require further comment.
Another ground suggested why the plea in abatement should have been sustained is that it is alleged therein that Mr. Cannon was a justice of the peace in and for West Ogallala precinct in Keith county, and that he exercised the functions of his office by receiving said complaint, and requiring the defendant to appear before such justice at his office in East Ogallala precinct in said county. It is claimed that the justice was without jurisdiction to arraign the accused, or to accept his waiver of the statutory preliminary examination, and State v. Shropshire, 4 Neb., 411, is cited in support of tire contention. In that case it was decided that it is the duty of a justice of the peace to hold his office in the precinct for which he is elected, and that mandamus would' lie to compel him to do so, The question now under consideration was not
A reversal is asked because the court refused the defendant’s fifth request to charge. Since the record fails to disclose that an exception was taken by the defendant to such refusal, the action of the court in that regard cannot be reviewed here. (Unland v. Garton, 48 Neb., 203; Lowe v. Vaughn, 48 Neb., 651.)
Instructions 4, 5, 6, 7, 8, and 9, given by the court on its own motion, are complained of. They having been grouped in a single assignment in the motion for a new trial, cannot be reviewed for the reason the assignment is bad as to instruction No. 5, on account of no exception having been taken thereto in the court below. (Western Union Telegraph Co. v. Wilhelm, 48 Neb., 913; Graham v. Frazier, 49 Neb., 90.)
It is finally claimed that the verdict is without sufficient evidence to support it. First, because the ownership or identification of the cow alleged to have been stolen was not established. The only testimony adduced by the state upon that branch of the case was given by Henry Chestnut, the agent of the corporation stated in the information as being the owner of the cow, who identified the animal by her brands and ear marks. The argument is that this was insufficient evidence of ownership, inasmuch as no proof was made of the recording of the brand, and attention is challenged to section 16, chapter 51, Compiled Statutes, which provides that “In all suits in law, or in equity, or in any criminal proceedings', when the title to any stock is involved, the brand on any
Affirmed.