Bush v. State
| Decision Date | 18 March 1896 |
| Citation | 66 N.W. 638,47 Neb. 642 |
| Parties | BUSH v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. An assignment of error for the overruling of a motion for a continuance will not be considered by this court, when the record fails to disclose that such motion was ever passed upon by the trial court.
2. Instructions will not be reviewed unless the record shows they were excepted to when given.
3. It is not error to refuse an instruction, where the substance thereof has been given to the jury in other instructions.
4. Held, that the evidence sustains the conviction for burglary.
Error to district court, Lancaster county; Tibbets, Judge.
George Bush was convicted of burglary, and brings error. Affirmed.Coffin & Stone, for plaintiff in error.
A. S. Churchill, Atty. Gen., and Geo. A. Day, Deputy, for defendant in error.
The defendant, George Bush, was tried and convicted on a charge of feloniously breaking and entering a dwelling house, in the nighttime, with the intent to commit a larceny. Judgment and sentence of imprisonment in the penitentiary for the period of eight years were entered against him, from which he prosecutes error to this court.
The defendant's motion to strike out the unauthenticated statement of the trial judge, found in the transcript, of what transpired during the proceedings, is sustained, as it is not made part of the record in this case.
It is argued that the court erred in overruling the defendant's motion for a continuance. With the statement above referred to eliminated from the record, there is nothing to show that the defendant's application for a continuance was not granted, or, if denied, that an exception was taken to the ruling. This assignment is not, therefore, well taken.
Criticisms are made in the brief of the 2d, 3d, 4th, 5th, 6th, 9th, and 10th instructions given by the court on its own motion. The record fails to disclose that an exception was taken to the giving of any of said instructions; hence no foundation has been laid for their review here, and they will not be considered. Heldt v. State, 20 Neb. 492, 30 N. W. 626;Hill v. State, 42 Neb. 519, 60 N. W. 916;Carleton v. State, 43 Neb. 373, 61 N. W. 699;Gravely v. State, 45 Neb. 878, 64 N. W. 452.
The defendant requested twenty-one instructions, all of which were refused by the court, and an exception was taken to such refusal. We have examined the several requests to charge, and find that, in so far as they correctly state...
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