Brown v. State

• Decision Date: 05 November 1891
• Citation: 50 N.W. 154,33 Neb. 354
• Parties: GEORGE BROWN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

50 N.W. 154

33 Neb. 354

GEORGE BROWN v. STATE OF NEBRASKA

Supreme Court of Nebraska

November 5, 1891

ERROR to the district court for Douglas county. Tried below before CLARKSON, J.

AFFIRMED.

J. L Kaley, for plaintiff in error, cited, contending that on an information drawn under sec. 113a, Criminal Code, the accused could not be convicted of robbery: 2 Bishop, Crim. Law, sec 1166; 1 Wharton, Crim. Law, sec. 854; 2 Archibald, Crim Prac. & Pl., 1290; Shinn v. State, 64 Ind. 13; McCloskey v. People, 5 Parker, Crim. Rep. [N. Y.], 305.

George H. Hastings, Attorney General, contra, cited, as to the definition of larceny: 2 East, P. C., 553; Hickey v. State, 23 Ind. 21. Robbery is a form of compound larceny: 2 Bishop, Crim. Law., 757; Hickey v. State, 23 Ind. 21. A charge of robbery will sustain a conviction of larceny: Stevens v. State, 19 Neb. 647; 2 Bishop, Crim. Law, 1156; 1 Wharton, Crim. Law, secs. 846, 856; State v. Arnold, 31 Neb. 75.

OPINION

MAXWELL, J.

The plaintiff in error was found guilty of grand larceny, and sentenced to imprisonment in the penitentiary for two years. The errors assigned relate to the giving and refusing certain instructions. The information is as follows:

"Of the May term of the district court of the third judicial district of the state of Nebraska, within and for the county of Douglas and state of Nebraska, in the year of our Lord 1890.

"I, Timothy J. Mahoney, county attorney in and for the county of Douglas, in said state of Nebraska, who prosecutes for and in behalf of said state, in the district court of said district sitting in and for said county of Douglas, and duly empowered by law to inform of offenses committed in said county of Douglas, come now here, in the name and by the authority of the state of Nebraska, and give the court to understand and be informed that on the 6th day of May, A. D. 1890, George Brown, late of the county of Douglas aforesaid, in the county of Douglas and state of Nebraska aforesaid, then and there being, did then and there in said county, in and upon one Mrs. Anna M. Kervan, unlawfully, forcibly, and with violence make an assault, and her the said Mrs. Anna M. Kervan in bodily fear then and there feloniously did put, and from the person and against the will of her the said Mrs. Anna M. Kervan then and there feloniously, forcibly, and by violence did steal, take, and carry away one pocketbook of the value of $ 1.50, and eighty-five cents lawful money of the United States of the value of eighty-five cents, all being of the value of $ 2.35, the property of the said Mrs. Anna M. Kervan, with the intent then and there to steal, take, and carry said property away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska."

Section 13 of the Criminal Code provides: "If any person shall forcibly and by violence, or by putting in fear, take from the person of another any money or personal property, of any value whatever, with the intent to rob or steal, every person so offending shall be deemed guilty of robbery, and upon conviction thereof shall be imprisoned in the penitentiary not more than fifteen nor less than three years."

Section 113a provides: "Every person who steals property of any value by taking the same from the person of another without putting said person in fear by threats or the use of force and violence, shall be deemed guilty of grand larceny, and shall, upon conviction thereof, be punished by confinement in the penitentiary for not less than one nor more than seven years."

The court instructed the jury as follows:

"In order to convict the defendant of a robbery you must be satisfied from the evidence, beyond a reasonable doubt, of the truth of the following propositions:

"First--That he took the property described in the information, or some part of said property, from the person of Anna M. Kervan.

"Second--That such taking was done by force and violence or by putting said Anna M. Kervan in bodily fear.

"Third--That such taking ...