Brown v. State

• Decision Date: 24 January 1911
• Docket Number: 16,825
• Citation: 129 N.W. 545,88 Neb. 411
• Parties: THOMAS J. BROWN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

129 N.W. 545

88 Neb. 411

THOMAS J. BROWN v. STATE OF NEBRASKA

No. 16,825

Supreme Court of Nebraska

January 24, 1911

ERROR to the district court for Cherry county: JAMES J. HARRINGTON JUDGE. Reversed.

REVERSED.

F. M Walcott, A. M. Morrissey and Allen G. Fisher, for plaintiff in error.

Arthur F. Mullen, Attorney General, and George W. Ayres, contra.

SEDGWICK J. FAWCETT, J., not sitting.

OPINION

SEDGWICK, J.

The defendant in the court below, who is plaintiff in error here, was convicted in the district court for Cherry county of the crime of stealing cattle and was sentenced to seven years in the penitentiary. He has brought the case here for review.

1. The first objection made by the defendant is that the court refused to require the prosecuting attorney to elect upon which count of the information he would proceed. One count of the information charged the defendant with stealing cattle and another count charged him with receiving the cattle, knowing that they had been stolen. Larceny and receiving stolen property are generally supposed to be so connected with the same transaction as not to require an election. 1 Bishop, New Criminal Procedure (4th ed.) sec. 457. Section 419 of our criminal code so provides. That section is as follows: "An indictment for larceny may contain also a count for obtaining the same property by false pretenses, or a count for embezzlement thereof, and for receiving or concealing the same property, knowing it to have been stolen; and the jury may convict of either offense, and may find all or any of the persons indicted guilty of either of the offenses charged in the indictment." There was therefore no error in this ruling of the court.

2. It is also insisted in the briefs that immediately before this case was called for trial another prosecution for cattle stealing had been tried with a verdict of not guilty, and that the court had reprimanded the jury with remarks tending strongly to prejudice any defendant that might be put upon trial thereafter upon such a charge before members of the same jury or other jurors who had heard the court's language. There is no evidence in the record of any such transaction except certain affidavits of the defendant in which some alleged facts and some conclusions are recited. The facts set forth in this affidavit are not sufficient to support the argument now made upon this point. The record of the trial discloses no prejudice upon the part of the court against the defendant's case, and no such action on the part of the court will be admitted unless clearly shown by the proof.

3. In September or the first part of October, 1909, eight or nine head of cattle were missed from the range of one Carter, in Cherry county, the property of one Byron. The Carter range embraced several sections of land and contained something over 1,000 head of cattle, and among these cattle were 25 or 30 head belonging to the said Byron. In the month of March following, these missing cattle were seen by Mr. Carter in the inclosure of this defendant, about 25 or 30 miles from the range upon which they had been kept. It was thereupon arranged with the county attorney and the sheriff that a Mr Hyde should go to the place of the defendant and attempt to buy the cattle in question, which was done. Mr. Hyde testified that at first the defendant, who had 25 or 30 head of cattle, declined to sell any, but afterwards informed Mr. Hyde that he had some cattle with "off brands" which he would sell. Mr. Hyde had represented to the defendant that he was trying to buy a few cattle for a friend of his in Keya Paha county, and finally succeeded in purchasing the cattle in question, to be delivered at Arabia, some seven miles distant, and paid the defendant $ 5 on the contract. That same day the defendant drove these cattle to Arabia, and was there met by the sheriff with a warrant for his arrest for stealing the cattle. Another witness also testified that at about the time the cattle were missing from the range he had seen this defendant driving with a team and wagon toward the said range and not many miles distant therefrom. This the defendant denied. While the defendant was under arrest upon this charge he was taken to his home by the sheriff, and on the way he told the sheriff that he had bought these cattle from a stranger who represented that his name was Hammers, and also represented that he lived near Marsh Lake, which was some 25 or 30 miles distant; that the said Hammers was driving the cattle from his home to Valentine expecting to sell them to a specified dealer there. The defendant also stated to the sheriff that there was no other person present at the time of this purchase except the defendant's wife, who heard the contract. Afterwards, while the defendant was in jail, the county attorney procured a subpoena for the defendant's wife and caused her to be brought to town by the deputy sheriff and taken to his office. There he told her that her husband had stated that he had bought the cattle as above recited, and that she was present, and asked her if that was the fact, whereupon she answered him to the effect that she paid no attention to her husband's business. He then took her in the sheriff's office and in his presence repeated the same question, to which she made substantially the same answer. The defendant's wife was called as a witness in his behalf at the trial, and she testified that she was present when her husband bought the cattle from the stranger, stating the details substantially as her husband had stated them. In her cross-examination she was asked whether these questions had been put to her in the county attorney's office and in the sheriff's office, and after some hesitation she answered that they were, and she was further asked if she answered that question to the attorney and sheriff that she did not know, and after again hesitating she answered that she did. She testified that she thought they were trying to take advantage of her and did not know what to answer them. This cross-examination was objected to, but the objections were overruled. Afterwards the county attorney and the sheriff both went upon the witness-stand and testified in detail to the questioning of this woman in the county attorney's and sheriff's offices, and to her answers, all substantially as she had testified to herself upon her cross-examination. This testimony was objected to for the reason, among other things, that...