Brinegar v. State

• Decision Date: 06 November 1908
• Docket Number: 15,706
• Citation: 118 N.W. 475,82 Neb. 558
• Parties: CLARENCE E. BRINEGAR v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

118 N.W. 475

82 Neb. 558

CLARENCE E. BRINEGAR v. STATE OF NEBRASKA

No. 15,706

Supreme Court of Nebraska

November 6, 1908

ERROR to the district court for Thayer county: LESLIE G. HURD JUDGE. Affirmed.

AFFIRMED.

M. H Weiss and Richards & Haffke, for plaintiff in error.

William T. Thompson, Attorney General, and Grant G. Martin, contra.

OPINION

BARNES, C. J.

At the December, 1907, term of the district court for Thayer county, Clarence E. Brinegar was charged with wrongfully setting on fire, burning and consuming two certain stacks of oats, the property of one G. W. Lovercheck, of the value of $ 75. The venue was properly laid in Thayer county, Nebraska, and the date of the offense was alleged to be the 16th day of October, 1907. He was tried and convicted in April, 1908, and the jury found that the property destroyed was of the value of $ 115. On the trial it was made to appear that the defendant was a minor, about 17 years of age at the time the crime was committed, and for that reason the district court, instead of sending him to the penitentiary, committed him to the industrial school at Kearney, Nebraska, until 21 years of age, unless sooner discharged in the manner provided by law. The defendant has brought the case here for review.

1. His first contention is that the verdict is not sustained by the evidence, because (to use the language of his counsel) there was no evidence to connect him with the act of setting fire to the property in question, except the unsupported testimony of an accomplice. An examination of the record discloses that this contention is not well founded. The principal witness for the state was one Frank Vance, who testified, in substance, that he was working for the defendant's father on the 16th day of October, 1907, and had been working for him for some days before that time; that on the evening of that day he accompanied the defendant to the village of Bruning, which is located in the northern part of Thayer county; that the defendant invited him to make the trip; that they drove a span of mules belonging to the defendant's father; that they arrived at Bruning about 9 o'clock in the evening, and while there they visited a saloon, where each drank two glasses of whiskey and two glasses of beer. Vance further testified that he purchased a pint of alcohol and a half pint of whiskey, which he took home with him without drinking any of it; that the defendant purchased a bottle of beer, which they drank on their way between Bruning and Belvidere, while returning to the defendant's home; that on their return, and a short time before they reached their destination, they passed the stacks of oats in question, which were situated near the highway; that it was a moonlight night, and they saw an old wagon partly loaded with coal, standing near the stacks; that he was driving, and, when they saw the wagon, the defendant called "Whoa " stopped the team, jumped out of the buggy, and said: "Come on and help me tip this wagon over"; that he refused to assist the defendant, who thereupon took the wrench out of the doubletree, unscrewed the burrs from the wheels of the wagon, and threw two of them to the northeast; that he did not know what was done with the third one; that the defendant then called to him again to help him to turn the wagon over; that he refused to assist the defendant, and entreated him to come on, get into the buggy and go home; that the defendant finally seemed to get one wheel off the wagon, and again called to him to help overturn it; that the defendant then took hold of the team by the bits, turned them around and led them up toward the stacks; that, as soon as the defendant let go of the team, he drove them away and turned them into the road again; that he was all the time commanding and entreating the defendant to come on and get into the buggy and go home; that the defendant thereupon said: "If you don't help me turn this wagon over, I will set fire to these two stacks." I said: "You won't do any such thing. Come on and go home." The defendant thereupon got out a match, lit it, fired the stacks, and then ran to the buggy and got in, remarking: "You didn't think I'd do it, did you?"

This evidence is absolutely undisputed by any one and it should therefore be taken as true. An accomplice is one who co-operates with or aids and assists another in committing a crime; one who is not the principal actor in or instigator of the commission of a crime, but who to some extent assists in its commission or encourages it beforehand. The term accomplice is sometimes used as equivalent to accessory before the fact. An aider or abettor may be one who so far participates in the commission of a crime as to be present for the purpose of assisting therein, if necessary. In such a case he will also be liable as principal. In 1 McClain, Criminal Law, sec. 199, it is said: "Either an accomplice or an aider and abettor will in general be principal or accessory, depending upon whether he is present or absent when the crime is committed. * * * Something more than mere presence, even accompanied with approval of the act done, is necessary to make one an aider and abettor. There must be some participation, either in the plan or its execution." The evidence shows that Brinegar committed the crime, not only without the assistance or procurement of Vance, but in direct opposition to his importunities not to do it. So it may be said that the evidence fails to show any fact or circumstance which would render Vance an accomplice in the transaction. It further appears from the testimony that, after defendant had fired the stacks, Vance, who was with difficulty holding the team,...