51 Neb. 711 | Neb. | 1897
Plaintiffs in error were by the district court for Douglas county convicted of the crime of robbery and sentenced to a term in the penitentiary, from which judgment they prosecute error to this court.
The first assignment of the petition in error relates to the sufficiency of the evidence to sustain the judgment. Among the facts which the state’s evidence tends to establish are the following: On the 20th day of September, 1896, Thomas Thompson, a young man whose home was in Furnas county, in this state, arrived at the Union depot in the city of Omaha, where, while waiting for a delayed train, he was accosted by Stone, one of the defendants, and asked to take a walk in company with him, Stone. Having accepted the invitation, he proceeded with said defendant to what is described as the high school grounds, where the latter picked up a small padlock, remarking, “See what a curiosity I have found.” At that point Wharton, another of the defendants, appeared and' was soon engaged in a bet with Stone, the subject of their wager being the ability of the latter to open said lock without a key. Wharton, it seems, succeeded in opening the lock without difficulty, upon which he demanded and received from Thompson, who had consented to act as stakeholder, the sum of $10, being the amount of money wagered. At that time Williams, the third defendant, appeared upon the scene, representing himself as a police officer and accusing Thompson and his companions, Stone and Wharton, of violating the statute, or ordinance of the city against gambling. The further transactions of the party are thus briefly narrated by Thompson in his testimony: “Just then Williams stepped up and says, ‘Gentlemen, what is the matter?’ Wharton says, ‘These two gentlemen (meaning Stone and I) are trying to rob me out of my money,’ and Williams unbuttoned his coat and showed a police star and says, ‘Gentlemen, I am an officer,’ and walked up to
“Q. Why did you give the $20 to him at last?
“A. I was so scared I did not hardly realize what I was doing.”
That the defendants were confidence men, engaged in a conspiracy to swindle Thompson they frankly admit. They further admit that their victim may have been induced to part with his money through fear of the threatened prosecution. The sufficiency of the foregoing evidence to warrant, a conviction of the particular crime charged is, however, denied, — a question to which attention will now be directed.
The state was permitted, over the objection of defendants, to prove the finding in their rooms, in a distant part of the city, of certain blank checks upon banks in different parts of the country, a large revolver, a “flash roll,” and other instruments suggestive of the confidence man. It was claimed for such checks and the “flash roll” that they tended to prove a unity of purpose on the part of the defendants and were admissible as evidence of a conspiracy by them, while the theory upon which the revolver was received in evidence does not appear. The attorney general has not, we observe, assumed to defend the ruling here assailed, and we are satisfied that it is indefensible, both upon reason and authority. The rule, says Mr. Greenleaf, “excludes all evidence of collateral facts or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.” (1 Greenleaf, Evidence, sec. 52.) The fact that the defendants jointly owned a revolver which was, at the time of the assault, in their room several blocks distant tends in no degree to characterize the transaction in question either as respects the force employed in order to effectuate ^their purpose, or the extent to which the prosecuting witness was actuated by fear in the surrender of his money. It may be said, too, of the other articles mentioned that, although they tend strongly to prove a purpose to defraud, they shed no light upon the real question at issue, and their admission in evidence was presumptively prejudicial to the rights of the accused. For the error here pointed out the judgment is reversed and the cause remanded.
Reversed.