85 Neb. 401 | Neb. | 1909
Plaintiff in error was indicted by the grand jury of Phelps county at the June, 1909, term of the district court for the crime of selling intoxicating liquors in violation of law and without first having procured a license therefor. The record discloses that a plea in abatement was filed by him, alleging that before the return of the indictment an information had been filed charging him with the same offense. At the hearing it was disclosed that the information had been dismissed prior to the filing of the plea in abatement, and therefore there was no real question presented by the plea. However, had that not been the case, the provision of section 435 of the criminal code doubtless covers the point sought to be made by plaintiff in error, and the plea would have been unavailing.
A trial upon the indictment resulted in a verdict of guilty, and plaintiff in error was fined in the sum of $200, and ordered committed until the fine and costs were paid. After the verdict, and prior to the judgment, a motion for a new trial was filed, in which a| number of questions were raised, and which will be noticed only so far as
The court in instructing the jury appears to have given two instructions numbered 4. This probably was an inadvertence and a clerical error on the part of the court and to some extent, at least, in violation of section 55, ch. 19, Comp. St. 1909. We find no record of any objections upon this ground at the time of the giving of the instruction and the attention of the court was probably not called to the error. Under the rule laid down in Kastner v. State, 58 Neb. 767, the error can avail nothing if no exception was specifically taken on that point at the time the charge was given to the jury.
The charge in the indictment was that plaintiff in error had sold one quart of the intoxicating liquor to J. A. Anderson. The court gave the jury instruction numbered 6, which -is as follows: “The court instructs you, gentlemen of the jury, that if from all the evidence in this case you believe, beyond a reasonable doubt, that certain whiskey was shipped to one F. A. Freed, under the name of F. A. Reed, and a bill of lading was forwarded with ■ draft attached, and you also believe from the evidence that the said F. A. Freed refused to take said whiskey, and that he told the defendant that he might have it, and that he gave him an order for it, and
The second instruction numbered 4 is complained of in connection with the one numbered 6, and was excepted to in the following language: “To the giving of this instruction No. 4 the defendant excepts, this being the second No. 4 given by the court.” There is nothing to show that this exception was taken before the reading of the instruction to the jury. As above suggested, had the attention of the court been called to the error before the instruction was given, it would doubtless have been corrected. Assuming that the exception would reach the body of the instruction, we must still hold that there was no error.
If plaintiff in error can be held to have purchased the whiskey from the vendors, the house at McCook, and sold it to Anderson, he was guilty of a violation of the statute in making the sale. If such were not the case, and he simply acted as a go-between in the transfer of the whiskey, he would still be guilty as an aider and abettor in the violation of the law; but, as was held in Wagner v. State, 48 Neb. 1, there are no accessories in misdemeanors. “Those whose conduct is such that it
No reversible error being found in tbe case, tbe judgment of tbe district court is
Affirmed.