80 Neb. 698 | Neb. | 1908
The defendant, Joseph Skidmore, was charged with stealing nine hogs on the 25th day of February, 1907, the property of one John Ferguson. Upon trial he was found guilty and sentenced to the penitentiary.
Ferguson resided in Iowa, but owned a ranch in Holt county, about twelve miles from the village of Atkinson. He employed a young man named Kimball to occupy the ranch and take care of the property. The evidence of the state, which was evidently believed by the jury, is about as follows: The defendant, Skidmore, had been employed by Ferguson upon the ranch in the same capacity as Kim-ball until December, 1906, the time that Kimball took
The court instructed the jury, in substance, that, if the defendant requested, instigated and procured the three men to steal the hogs, and that pursuant to such procurement they took the hogs, brought them to Atkinson, and that they were there sold by defendant with the felonious intent to steal the hogs and deprive the owner of his property, then the defendant would be guilty as charged. In many states the old common laAV distinction between
In Lamb v. State, supra, the facts were that Hill and Stewart stole cattle and drove them to a railroad stockyard at Lamb’s instigation and procurement. Lamb, soon after, brought some of his own cattle to the stock-yard, mingled them with the stolen cattle, shipped and sold the whole number and appropriated the proceeds. It was contended that the refusal of the court to tell the jury that defendant could not be convicted if he was a principal in the second degree was error, but the court said • .“The refusal of the court to tell the jury that defendant could not be convicted if he was a principal in the second degree was not error. There is, in our opinion, no evidence tending to prove that Lamb was present when the cattle were stolen, or that he was near enough to give aid or encouragement in the perpetration of the crime.” The court also said: “The law of the case is very plain. If the cattle were stolen as alleged, and if Lamb was an accessory before the fact, that is, if by his command, request, advice or suggestion the crime was committed when he was neither actually nor constructively present, he was an
He was indicted for one crime and convicted of another. This cannot lawfully be done. Hill v. State, 42 Neb. 503; Dixon v. State, supra.
The judgment of the district court is
Reversed.