Berneker v. State

• Decision Date: 05 June 1894
• Citation: 59 N.W. 372,40 Neb. 810
• Parties: BERNEKER v. STATE.
• Court: Nebraska Supreme Court

40 Neb. 810

59 N.W. 372

BERNEKER

v.STATE.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. “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.” Hiatt v. Kinkaid (Neb.) 58 N. W. 700.

2. The language of an instruction with reference to the value of goods received, the prisoner being on trial for the alleged crime of receiving stolen goods, examined, and held not erroneous or objectionable.

3. Character, according to its legal construction, is a fact, and means the estimate in which the individual is held in the community in which he lives; and it is not error on the part of a trial court to exclude the knowledge of a witness, purporting to have been gained by personal acquaintance or dealings with the individual whose character is in question, as only the general reputation of such individual is admissible.

4. The action of the court in sustaining objections of counsel for the state to questions put to a witness on behalf of plaintiff in error examined, and held not erroneous.

5. An assignment of error in the following terms, “The court erred in admitting evidence of defendant receiving property at dates subsequent to the receiving on which and for which he was convicted,” held to be too indefinite in that it is too general, and failed to designate any particular or specific portion of the testimony of which complaint is made.

6. The indorsement of the name of a witness on the copy of the information contained in the transcript of the case raises the presumption that such indorsement was made at the proper time, and, in the absence of proof to the contrary, such presumption will prevail.

7. “Where a question is asked a witness, to which objection is made, which is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced in evidence.” Mathews v. State, 27 N. W. 234, 19 Neb. 330.

8. An affidavit which it is claimed was used in the hearing of a motion for a new trial, but the record does not disclose whether it was used or presented at the hearing of the motion, cannot be considered for any purpose in this court unless presented by bill of exceptions, and thus made a part of the record in the case.

9. The evidence examined, and held sufficient to support the verdict.

Error to district court, Douglas county; Scott, Judge.

One Berneker was convicted of receiving stolen property, and brings error. Affirmed.Weaver & Giller, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

HARRISON, J.

During the February, A. D. 1894, term of the district court of Douglas county, on March 2d, 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 court erred in instructing the jury that, before they could convict the defendant, they must find the value of the goods to be thirty-five dollars, or upwards.” The exceptions to the instructions were couched in the following language: “The defendant excepts to instructions numbered three, four, five, and six, given by the court on its own motion.” And the fourth ground on the motion for a new trial stated: “The court erred in giving instructions three, four, five, and six 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 three, 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 (Neb.) 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 of such instructions was properly given. See, also, McDonald v. Bowman, 58 N. W. 704, and Jenkins v. Mitchell (since decided) 59 N. W. 90, 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 $35.00 or upwards,” we will give it further notice. The instruction complained of reads as follows: “The facts necessary to be established by the evidence, beyond a reasonable doubt, to warrant a conviction of defendant, are: That the defendant at or about the time named in the information, and at and within the county of Douglas and state of Nebraska, received the goods described in the information, or some of them; that the same were the goods of the Fremont, Elkhorn & Missouri Railroad Co.; that the goods received by defendant had been stolen; that defendant received the goods knowing them to have been stolen, and with the intent to defraud the owner, the Fremont, Elkhorn & Missouri Railroad Co., and that the value of the goods was $35.00 or upwards. If these facts have not been established beyond a reasonable doubt, you should acquit the defendant; if all these facts have been established beyond a reasonable doubt by the evidence, you should convict the defendant.” 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 not 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 18th street, Omaha. Q. How long have you lived in Omaha? A. 12 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...