Wiegrefe v. State, 66 Neb. 23

Wiegrefe v. State

66 Neb. 23 | Neb. | 1902

Holcomb, J..

Tbe plaintiff in error, defendant below, was tried, and by a jury found guilty of tbe larceny of a two-year-old beifer, and by tbe court sentenced to imprisonment in tbe penitentiary for two years. He prosecutes error to bave tbe record of his conviction reviewed, and tbe judgment reversed. Tbe only question presented for our consideration is tbe alleged insufficiency of tbe evidence to support tbe verdict of guilty returned by tbe jury. Tbe argument in support of this contention is presented in a two-fold aspect: First, it is claimed that tbe evidence will not support a verdict of guilty of tbe offense charged in the information; and, second, because tbe property alleged to bave been stolen belonged to two joint owners, one of whom only was called as a witness, it is insisted tbe evidence will not warrant a conviction, when tbe other joint owner was not called to prove that tbe property was taken without bis knowledge or'consent, or in other words, that non-consent is not sufficiently established by the evidence.

Regarding tbe alleged insufficiency of tbe evidence generally, it is disclosed by tbe record that tbe state prosecuted on tbe theory that tbe defendant and one Pope committed tbe larceny while Pope was removing bis cattle from defendant’s herd and range, where they bad been kept for tbe summer season by tbe defendant. To sustain its charge, tbe state called Pope and bis son, a lad of fifteen years of age, who testified to facts regarding tbe *25taking of the animal alleged to have been stolen, which, if believed.by the jury, warranted the inference that the defendant and the elder Pope Avere both gnilty of the larceny. Pope, it appears, had already pleaded gnilty to the charge. To meet the testimony of the character mentioned, the defendant and his wife Avere called as witnesses, and testified to a contrary state of facts, the substance of which was that the animal claimed to have been stolen was not Avith or a part of defendant’s herd, or the cattle in his posses-, sion, at the time Pope removed those belonging to him. We are asked to say that the'testimony of Pope and his son is untrue, and that the defendant’s version of the transaction is the correct one. This we can not do without denying to the jury, as triers of‘fact, the right to judge of-the weight and credibility to be given the testimony of the different witnesses. It is for the jury, and not the court, to say who of the different witnesses were testifying truthfully, and Avho were in error. Whether it be an accomplice, or a Avitness in his ordinary capacity as such, it is for the jury to determine, after a careful examination of all the evidence, the truth of the matter in controversy; and a conviction may rest on the uncorroborated testimony of an accomplice, if, when considered with all the evidence in the case, it satisfies the jury beyond a reasonable doubt of the guilt of the accused. Olive v. State, 11 Nebr., 1; Lamb v. State, 40 Nebr., 312; Lawhead v. State, 46 Nebr., 607, 611. Where the testimony is conflicting, the credibility of witnesses and the weight to be given their testimony is a matter for the jury to determine, and, when it is convinced beyond a reasonable doubt of the defendant’s guilt, it is not for a reviewing court to say that it must also be convinced from the record beyond a reasonable doubt before the verdict can be upheld. Palmer v. People, 4 Nebr., 68; Schlencker v. State, 9 Nebr., 241; Carleton v. State, 43 Nebr., 373.

On the other phase of the question, it appears that one of the partners or joint owners of the property claimed to have been stolen testified positively and directly that the *26property was taken without the knowledge or consent of the owners. He was at the time looking after the business of the firm, had control of their cattle, and was acquainted with the facts and circumstances surrounding the transaction. The other joint owner was not called as a witness, nor do we regard it as necessary, in order to make out a prima-facie case on the part of the state, in showing that no consent was given to the defendant or to any one to take the animal. In any view we may take of the subject, there was positive evidencé of non-consent. All the circumstances surrounding the alleged larceny were inconsistent with a taking witli the consent of the owners; and want of consent may be inferred from circumstances shown in evidence, as well as by direct testimony that none was given. Rema v. State, 52 Nebr., 375, 382. In this case the defendant and his wife took the stand in his own behalf, and denied any knowledge of or participation in the alleged offense, and thus eliminated, so far as he was concerned, the question of non-consent. His theory was that he had no connection with the matter whatever, and it seems reasonably clear from consideration of the entire record that the evidence can not be said to be insufficient to support a verdict because non-consent is not shown. The evidence justifies the inference that the taking was felonious.

The judgment should be, and accordingly is,

Affirmed.