Berneker v. State
| Decision Date | 05 June 1894 |
| Docket Number | 6931 |
| Citation | 59 N.W. 372,40 Neb. 810 |
| Parties | ANTON BERNEKER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before SCOTT, J.
AFFIRMED.
Weaver & Giller, for plaintiff in error.
George H. Hastings, Attorney General, for the state.
During the February, A. D. 1894, term of the district court of Douglas county, on March 2, there was an information filed in said court, charging the plaintiff in error with the crime of receiving stolen property, certain goods and merchandise, of the alleged total valuation of $ 90.25. A trial was had to the court and a jury, which resulted in a verdict of guilty the value of the property being assessed in the verdict at the sum of $ 35.15. Motion for a new trial was filed for the plaintiff in error, which, on hearing, was overruled and the plaintiff sentenced to a term of three years in the penitentiary, to reverse which judgment and sentence these proceedings in error were instituted.
The first assignment of error which is urged in the brief of counsel for plaintiff in error herein is stated as follows The exceptions to the instructions were couched in the following language: "The defendant excepts to instructions numbered 3, 4, 5, and 6 given by the court on its own motion," and the fourth ground of the motion for a new trial stated: "The court erred in giving instructions 3, 4, 5, and 6 of its own motion," and in the petition in error, wherein the plaintiff in error complains of the instructions, the same words are used as in the motion for a new trial, and the instructions grouped together in one paragraph of the assignments. It is not claimed that any of the instructions are erroneous, or even defective, except No. 3, and an examination of them discloses that some, if not all, are entirely applicable to the facts developed in the case on trial, and free from error, which brings this assignment within the rule announced in Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W. 700, in which case it was held by this court that "an assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain that any one of such instructions was properly given." (See, also, McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704, and Jenkins v. Mitchell, 40 Neb. 664, 59 N.W. 90, since decided, and in which the rule above quoted was approved and followed.) This would effectually dispose of this assignment and obviate any necessity for further consideration of it; but inasmuch as the plaintiff in error, in his motion for a new trial, has further complained of this same instruction No. 3 in the following words: "That the court erred in instructing the jury that in order to find defendant guilty they must find the value of the property received by him to be $ 35 or upwards," we will give it further notice. The instruction complained of reads as follows: Here the court stated the essential elements of the crime alleged to have been committed and necessary to be proved by the state beyond a reasonable doubt before it could claim a conviction of the prisoner by the jury then trying the prisoner, and in the portion of the instruction in which the value was referred to the court did no more than to use the same or like language to that employed by the lawmaker who framed the statute wherein the crime for which the plaintiff was being prosecuted is defined. The portion of section 116 of the Criminal Code under which the plaintiff was being prosecuted, to which attention is directed, is as follows: "If any person shall receive or buy any goods or chattels of the value [of] thirty-five dollars or upwards, that shall be stolen or taken by robbers with intent to defraud the owner, or shall harbor or conceal any robber or thief guilty of felony, knowing him or her to be such, every person so offending shall be imprisoned in the penitentiary no more than seven years nor less than one year." We are satisfied that no prejudice could have resulted to plaintiff in error from the giving of the instruction containing the sentence indicated in regard to value, simply defining, as it did, one of the constituent elements of the alleged crime as it was defined in the statutes, which prohibited the crime and provided a punishment for its commission.
It is further complained that the court erred in refusing to permit the plaintiff in error to show that his reputation for honesty was good in the community in which he resided. The offer of the proof was contained in the evidence of but one witness, Henry Habbens. The portion of the record in which the examination of this witness appears is as follows:
Henry Habbens, being called on behalf of defendant and duly sworn, testified as follows:
Examined by Mr. Weaver:
Q. State your full name to the jury, Mr. Habbens.
A. Henry Habbens.
Q. Where do you reside?
A. 1408 North Eighteenth street, Omaha.
Q. How long have you lived in Omaha?
A. Twelve years.
Q. Are you acquainted with the defendant, Mr. Berneker?
A. Yes, sir.
Q. How long have you known him?
A. Between four and five years.
Q. What is your business?
A. I am engaged in the brewing business--Omaha Brewing Association.
Q. You say you have known the defendant about four years?
A. I think it has been between four and five.
Q. State from your acquaintanceship with the defendant what you would say about his being an honest, upright, straightforward man?
Objection by the state, as irrelevant, immaterial, and incompetent, defendant not having been put upon the stand. Sustained. Defendant excepts.
Q. State, Mr. Witness, if you are acquainted with the general reputation of the defendant for industry, uprightness, and being a straightforward man.
Objection by state, as irrelevant, incompetent, and immaterial. Sustained. Defendant excepts.
Q. Mr. Habbens, are you acquainted with the general reputation of the defendant for honesty and uprightness, and being a straightforward man, in the community in which he lives?
Objection by the state, as irrelevant, incompetent, immaterial, and no foundation laid for the question.
Q. And among those with whom he associates?
Objection sustained. Defendant excepts.
Q. From your acquaintanceship with the defendant, what would you say as to his being an honest, straightforward, upright man?
Objection by state, as irrelevant, incompetent, and immaterial. Sustained. Defendant excepts.
Q. State whether or not you have had any dealings with the defendant in the last three or four years, and during your acquaintanceship with him.
A. Yes, sir; I have.
Q. To what extent?
Objection by state, as irrelevant, incompetent, and immaterial. Overruled. State excepts.
A. I have seen him probably two or three times a week, and have done business with him, probably to the amount of $ 20,000 or $ 30,000 a year.
Q. Do you know what his general reputation is for industry, uprightness, and fair dealing, straightforward man, among the people with whom he lived and with whom he deals?
Objection by the state, as incompetent, irrelevant, immaterial, no proper foundation laid for the question, and having been already gone over. Sustained. Defendant excepts.
Q. From your knowledge of the defendant and your business dealing with him, what can you say as to his being an honest, upright, and straightforward man?
Objection, as irrelevant, incompetent, immaterial, and having already been ruled upon. Sustained. Defendant excepts.
Q. From your business dealings with the defendant, do you know whether or not he is an honest, straightforward, upright person?
Objection by state, as incompetent, irrelevant, immaterial, and leading, already been gone over, question having been asked and ruled upon. Sustained. Defendant excepts.
Q. You may state what you know about the defendant's being an honest,...
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