Carrico v. State

Decision Date13 November 1922
Docket Number22456
PartiesPRICE CARRICO v. STATE OF NEBRASKA
CourtNebraska Supreme Court

ERROR to the district court for Madison county: WILLIAM V. ALLEN JUDGE. Reversed.

REVERSED.

Frank A. Warner and William L. Dowling, for plaintiff in error.

Clarence A. Davis, Attorney General, and Mason Wheeler, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN and DAY, JJ., REDICK and SHEPHERD, District Judges.

OPINION

MORRISSEY, C. J.

Defendant prosecutes error from a conviction of robbery. On the evening of February 22, 1921, Earl J. Reed was halted in the railroad yards of the Chicago & Northwestern Railway Company at South Norfolk, where he was employed as a brakeman, a shotgun was thrust against his person, and he was directed to deliver his watch and his pocketbook, which contained $ 35, to his assailant. Reed obeyed the order. He soon thereafter notified the police, and after a brief search by Reed and members of the police force defendant and one Flesner were arrested. Defendant, when first arrested, denied any knowledge of the affair. Subsequently he admitted that he was the man who had threatened Reed and demanded and received his watch and money. His explanation was that he and his companion Flesner, went out with an unloaded shotgun with the intention of perpetrating a joke upon a friend named Doloc; that, at the time he received the property from Reed, defendant believed he was confronting his friend Doloc, and that he received the property intending to return it again to its owner. Flesner, who was charged as an accomplice, made the same explanation, but in addition thereto denied that he participated in the taking of the property from Reed. The jury returned a verdict of not guilty as to Flesner, and he is, therefore, not involved in this proceeding.

That defendant committed the acts charged stands admitted. He testified that there had been a number of "fake holdups" perpetrated in South Norfolk; that these matters had been discussed by him and a number of his acquaintances, and that one of his acquaintances, a Mr. Doloc, had made the remark that no one could "hold him up;" that on the evening of this occurrence Flesner and others had been guests at defendant's home, and during the evening defendant and Flesner agreed that they would borrow a shotgun and "hold up" Doloc, not for the purpose of taking his property, but merely as a joke; that in pursuance of this agreement defendant and Flesner borrowed a shotgun and went to the railroad yards expecting to meet Doloc; that they did not meet Doloc, but did meet Reed, and, believing Reed to be their friend Doloc, proceeded to carry out the joke; that he did not discover his mistake until after he had taken the watch and purse and its contents from Reed; that he then became confused, but began arrangements to effect a return of the property to Reed without letting Reed or other persons know of defendant's identity. In much of his story he is corroborated by other witnesses.

The chief complaint of defendant is directed to certain remarks made by the trial judge when ruling on objections to the admission of evidence. In reciting the evening's transactions defendant testified: "We sat down to eat supper and were talking there, and I don't know just who mentioned it, but we got to talking about a little fake holdup that had been pulled off down there in the yards about a week before that. Some of the boys at the round-house, just among themselves, had pulled off a fake holdup. And something was said about we ought to go down there and have some fun with them. Some of them had said they couldn't be held up, and so I mentioned"--County attorney: "I will object to testimony of this kind because it is incompetent, irrelevant and immaterial and constituting no defense whatever to this action, even if true." Defendant's counsel: "It goes to show the intent." By the court: "A man's intent is manifest by his actions. Objection sustained."

Defendant proceeded to testify along another line, but finally said "Then Mr. Flesner and I * * * we thought we would disguise ourselves a little bit and go down and have a little fun with some of the boys, because they had said that nobody could hold them up." The county attorney objected to this testimony, and the court said: "I want it...

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  • Carrico v. State
    • United States
    • Nebraska Supreme Court
    • November 13, 1922
    ...109 Neb. 177190 N.W. 576CARRICOv.STATE.No. 22456.Supreme Court of Nebraska.Nov. 13, Syllabus by the Court. The intent to commit a robbery may be manifested by the acts of the accused; but, when he offers evidence to explain his acts and from which the jury might reach the conclusion that th......

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