McLain v. State

• Decision Date: 29 September 1885
• Citation: 24 N.W. 720,18 Neb. 154
• Parties: MCLAIN v. STATE.
• Court: Nebraska Supreme Court

18 Neb. 154

24 N.W. 720

MCLAIN

v.STATE.

Supreme Court of Nebraska.

Filed September 29, 1885.

Error from Otoe county.

J. C. Watson and J. L. Mitchell, for plaintiff.

The Attorney General, for defendant.

COBB, C. J.

The plaintiff in error was indicted, tried, and convicted in the district court of Otoe county of the crime of grand larceny, in the stealing of a quantity of gold and silver watches, watch–cases, and jewelry, the property of Alexander Calmelet. The cause having been brought to this court on error, the questions presented arise upon the sufficiency of the evidence, the admission of the testimony of the witness Dennis Kay, misconduct of the prosecuting attorneys, the refusal to charge, and the charge as given by the court. These questions will be discussed in the order in which they are presented in the brief of counsel.

It appears from the bill of exceptions that the store of Mr. Calmelet is situated on Main, between Fifth and Sixth streets, Nebraska City, on the south side of the street. The store had two doors,––one front and one in the rear. On the afternoon of Saturday, the fifth day of April, 1884, at 5 minutes to 6 o'clock, Mr. Calmelet locked up his store and went to supper at the Morton house, a few blocks distant. He was absent from the store 35 minutes. When he returned he found that an entrance had been effected by removing a glass from the back window, reaching in and turning the key, which had been left in the back door, and drawing the bolt, and the watches, watch cases, and jewelry above–mentioned taken. The matter was placed in the hands of the sheriff of the county, who, the next day, had printed a circular containing a description of the property stolen, and an offer of a reward for its return and the apprehension of the thief. Copies of this circular were mailed to sheriffs and police officers throughout the country, including the chief of police of Chicago. On the morning of the fourteenth day of the same month, the defendant was arrested in the shop of a pawnbroker in the city of Chicago by Dennis Kay, a police officer. At the time of his arrest he had in his possession and on his person a part of the watches, watch–cases, and jewelry stolen as aforesaid, about half in value of the same. It further appears from the bill of exceptions that at the time of the breaking into the said store and larceny of said goods the defendant was in Nebraska City, and had been there for about two weeks; that during said time he took his meals at the restaurant of William Ince, and roomed in the Barnum House; that he was without any known occupation, but claimed to be about to open a shooting gallery. There was also evidence tending to prove that he was without money. He continued to take his meals at Ince's restaurant until Friday, April 10th, when he disappeared, and was not seen there again, nor elsewhere in Nebraska City, until he was brought back after his arrest in Chicago.

The only evidence offered on the part of the defense, except of one witness, was that which tended to prove an alibi; and it cannot be denied that such evidence was very strong. Capt. Murfin, Mrs. William Ince, Nettie Knight, and Richard Filbon all testified to facts in relation to the presence of the defendant in the dining–room of Ince's restaurant between the hours of 5 and 7 o'clock on the evening of the larceny, which, if true,––and no doubt is cast upon the honesty or candor of either of the witnesses, and the clock in the dining–room indicated the correct time,––was sufficient to establish the impossibility of the defendant's being at the scene of the larceny at any time between 5 minutes before and 30 minutes after 6, the whole period of Mr. Calmelet's absence from the store, according to his testimony. But W. W. Brown, a witness on the part of the state, testified that he was on Main street diagonally opposite to, and across the street from, Calmelet's store on the evening in question, 20 minutes or half an hour before he went to his supper at the Morton House, saw Calmelet come out of the store and pass up the street, and that shortly afterwards, and when witness had time to walk about three–fourths of a block, he met defendant and passed him on the sidewalk, diagonally, and on the oppositeside of the street, from Calmelet's store; that defendant was alone, and looking in the direction of Calmelet's store. Witness testified that within 25 minutes or half an hour from the time of his meeting defendant on the sidewalk, as above stated, he heard at Reed's drug–store of the robbery of Calmelet's jewelry store. Witness testified that the time when he saw Mr. Calmelet come out of the jewelry store and pass up street was not earlier than 5 minutes before, nor later than five minutes after, 6 o'clock; and, though he was subjected to a searching cross–examination, none of his statements were in the least shaken. I have stated the substance of the testimony for and against the alibi for the purpose of introducing the instructions prayed by the defendant and refused by the court, which refusal is urged as error.

The instructions prayed were as follows: “(No. 6.) The jury are instructed that the burden lies on the state to prove the falsity of the defendant's alibi beyond a reasonable doubt.” “(No. 9.) The jury are instructed that the presumption arising from the possession of stolen property is completely removed by the proof of an alibi for defendant.” “(No. 10.) The court instructs the jury that while possession of stolen property recently after the theft, if unexplained, is a circumstance tending to show the guilt of the possessor, still, in this case, if the jury believe from the evidence that the defendant, at the time of the commission of the larceny, was at the restaurant of William Ince, and not at the place of the said larceny, this is a satisfactory account of his possession of the property, and removes every presumption of guilt growing out of such possession.”

The following instructions, bearing on the point of defendant's evidence tending to prove an alibi, were given:

“(4) It is a rule of evidence, in trials for the larceny of goods, that the finding of the stolen goods in the exclusive possession of the accused, very recently after the larceny was committed, is presumptive evidence that he stole them; and, in this case, if the goods mentioned in the indictment were stolen, and shortly after the larceny they, or a portion of them, were found in the exclusive possession of the accused, the presumption arising from such possession is that the defendant stole them. But the defendant having introduced evidence to show that he, at the time of the larceny, was at another place, and could not have perpetrated the crime, the burden still rests upon the prosecution to prove the defendant did commit said larceny, and is guilty beyond a reasonable doubt.”

No. 1 of instructions given as prayed by defendant. “Where a person on trial for a crime shows that he was in another place at the time when the act was committed, he is said to prove an alibi.”

“(2) One of the defenses interposed by the defendant in this case is what is known as an alibi,––that is, the defendant was at another place at the time of the commission of the crime; and the court instructs the jury that such defense is as proper and as legitimate, if proved, as any other, and all evidence bearing upon that point should be carefully considered by the jury; and if, in view of all the evidence, the jury have any reasonable doubt as to whether the defendant was in some other place when the crime was committed, they should give the defendant the benefit of the doubt and find him not guilty.

(3) As regards the defense of an alibi, the jury are instructed that the defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is sufficient if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged.

(4) The court further instructs the jury that if they believe from the evidence that at the time of the alleged larceny, and at the hour that the crime was committed, the defendant, McLain, was at the restaurant of William Ince, as testified to by some of defendant's witnesses, and was not present at the scene of such larceny at the time of its commission, then you must acquit the defendant.

(5) The jury are instructed that if you entertain any reasonable doubt as to whether or not the defendant, McLain, was at Ince's restaurant, or at the scene of the larceny, Calmelet's store, at the time the larceny was committed, then it is your sworn duty under the law to give the benefit of the doubt to the defendant and acquit him.”

“(7) The jury are instructed that if you should entertain a reasonable doubt as to the defendant's guilt he should be acquitted, although the jury might not be able to find that the alibi was fully proved.

(8) The jury are instructed that the fact that the defendant may not be able to show how or where he acquired possession of the property alleged to have been stolen is by no means conclusive of his guilt, but merely raises a presumption of guilt, which he may rebut by proof that at the time of the commission of the offense he was some...