No. 13,228 | Neb. | Jul 3, 1903
The defendant was tried for and adjudged guilty of the larceny of money of the value of $50. By these proceedings he seeks to reverse the judgment pronounced against him; and one of the errors assigned is that the court should have sustained his plea in abatement, on the ground that he was given no preliminary examination on the charge of which he was found guilty. This contention is based solely on the fact, as disclosed by the record, that the information in the district court sets forth with more fullness and specificness, by the use of additional verbiage, some of the elements of the crime charged. It does not appear that a different offense was charged, nor can it be said that no crime was charged in the complaint on which the preliminary hearing was based. The complaint filed before the examining magistrate charged that the defendant “then and there did, then and there, unlawfully and feloniously take, steal, and carry away a certain sum of money to wit, the sum of $75 being lawful money of the United States and of the value of $75, being the property of Jesse W. McNiel, the said money being in bills of denominations unknown to affiant,” etc. The information on which defendant was tried and to which the plea of abatement was interposed, contains the identical language quoted and added thereto, after the Avord affiant, the following, “then and there with the intent to unlawfully and feloniously convert the same to his own use against the Avill of the said Jesse W. McNiel.”
It can not be doubted that the complaint on Avhich the preliminary hearing was based charged not only substantially, but almost in the identical language, the same crime for which the defendant was tried in the district court. The filing of the complaint and the hearing had thereunder appear to have been in strict compliance with the statute regarding preliminary examinations of persons accused of crime, before they are proceeded against by information in the district court. Cowan v. State, 22 Neb. 519" court="Neb." date_filed="1887-07-15" href="https://app.midpage.ai/document/cowan-v-state-6645360?utm_source=webapp" opinion_id="6645360">22 Neb. 519; Hock
In this connection it is further contended that a motion to quash and a demurrer to tbe information Avhich Avere interposed in the district court, should have been sustained because of tbe alleged duplicity in tbe information, by reason of tbe added allegation in charging the crime in tbe district court, Avhich Ave have quoted. All that was doné by tbe change adverted to Avas, as has been said, to state Avith more fullness and specificness the essential ingredients constituting the crime; that is, tbe unlaAvful and criminal intent of the taker of tbe property, alleged to have been stolen, to permanently deprive tbe owner of bis property against bis Avill and convert it to tbe use of tbe taker. But one offense is charged in tbe information and, in tbe charging, there is no such uncertainty or duplicity as to render tbe information vulnerable to a motion to quash or to a demurrer, and no error was committed in overruling each of the pleas thus interposed. An instruction AAras given the jury-Avhich Avas excepted to, on the ground that it permitted tbe finding of nonconsent, on the part of tbe OAvner, to tbe taking of tbe property alleged to have been stolen, from circumstances shown in evidence, and not by any direct proof. Tbe instruction was proper. Tbe owner, it Avas shoAvn, Avas, at the time, lying on bis deathbed and Avholly unconscious of what was passing around him. As Avas said in Wiegrefe v. State, 66 Neb. 23" court="Neb." date_filed="1902-10-22" href="https://app.midpage.ai/document/wiegrefe-v-state-6654752?utm_source=webapp" opinion_id="6654752">66 Neb. 23:
“All tbe circumstances surrounding tbe alleged larceny were inconsistent with a taking Avith tbe consent of tbe*523 owners; and want of consent may be inferred from circumstances shown in evidence, as well as by direct testimony that none was given.” gee also Rema v. State, supra.
An instruction, Avhich told the jury, in substance, that the burden of proving the defendant’s guilt beyond a reasonable doubt, rested upon the state throughout the entire trial and that the presumption of innocence should be indulged in at all times during the deliberations of the jury, unless overcome by competent evidence on the part of the state to satisfy them beyond a reasonable doubt of the defendant’s guilt, is excepted to, because, as alleged, it results in a shifting of the burden of proof. The position is untenable. The instruction does nothing more than to advise the jury that the presumption of innocence remains Avith the accused, till by competent evidence the state establishes his guilt beyond a reasonable doubt.
gome other instructions are excepted to because of the giving or refusing to give the same. An examination of the rulings complained of, satisfies us that no prejudicial error is disclosed by the record relative thereto.
’ One witness was permitted to testify, over objections, that on Thursday or Friday, preceding the gunday night when it is alleged the offense Avas committed, he had given to the person from whom the larceny Avás committed tAventy or tAventy-five dollars in bills and that the owner at the time had forty or fifty dollars in bills in addition thereto, all of which were placed in a poclcet memorandum book belonging to the owner and in which he kept his money. The evidence was offered for the purpose of proving the amount of money in the possession of the OAvner which was alleged to have been stolen, and Avas. objected to as too remote. The circumstances shown in evidence as to the movements of the owner after the incident testified to and the nearness in time between the two transactions, satisfy us that the evidence was admissible, and that the court properly overruled the objection on the ground stated,
Affirmed.