91 Neb. 158 | Neb. | 1912
At the December, 191.1, term of the district court for Buffalo county Robert J. Wallace, hereafter called the defendant, was convicted of the crime of hog stealing, and was sentenced to the penitentiary for a period of not less than one year, nor more than five years, “as shall hereafter be determined by the prison board.” To reverse that judgment the defendant has prosecuted error.
His assignments, are: First, the verdict of the jury is not sustained by the evidence; second, the sentence of the court is contrary to law; third, the sentence of the court by reason of its being indefinite in time of duration is a violation of the constitution of this state and is unauthorized by law, especially that part of the judgment of the court which leaves the “prison board” to determine the duration of the imprisonment is obnoxious to the constitution of this state; fourth, certain errors in the instructions of the court given by it on its own .motion. The assignments will be considered in the order stated.
Patterson, the complaining witness, testified that he saw Robert Wallace and his father, Janies, on August 12, driving two red hogs out of the cornfield at James’ place near Amherst; that he tried to count his hogs that night, but failed; that he counted them in the morning, they were seven short; that he found the hogs at Robert Wal
The state contends that, because of the contradictory statements made by the defendant and his witnesses, the jury might have reasonably concluded that, when the hogs were taken, defendant and his1 father intended to deprive the complaining witness of his property, and that Robert expected to convert them to his own use. We are of opinion, however, that the evidence is insufficient to sustain the verdict. In order to convict the defendant of the crime of larceny, as charged in the information, the state was required to prove, beyond a reasonable doubt, that defendant participated in the larcenous taking of the hogs in question from the complaining witness. We think the evidence was insufficient to establish that fact beyond a reasonable doubt. Having reached this conclusion, wo could well decline to consider the other questions argued
It is further argued that the law is unconstitutional because the defendant might have been prosecuted under the provisions of section 119 or of section 111 of the criminal code as well as section 117b upon which the prosecution was based, and therefore the state had the
The decision in that case was followed and approved in People v. Roth, 249 Ill. 532. A like act of the legislature of Kentucky was upheld in Berry v. Commonwealth, 141 Ky. 422. To the same effect are State v. Ferguson, 149 Ia. 476; Palmer v. State, 168 Ala. 124, 53 So. 283; George v. Lillard, 106 Ky. 820. We think that the foregoing sufficiently disposes of this question.
For the reason that the evidence does not sustain the verdict, the judgment of the district court is reversed and the cause is remanded for further proceedings.
Reversed.