Clark v. State
| Decision Date | 19 May 1949 |
| Docket Number | 32595. |
| Citation | 37 N.W.2d 601,151 Neb. 348 |
| Parties | CLARK v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The venue in a criminal case may be established by circumstantial evidence.
2. One cannot be convicted of a felony upon his own unsupported extrajudicial confession that a crime has been committed. Such confession may be sufficient to prove the defendant's connection with the criminal act, but there must in all cases be proof aliunde of the essential facts constituting the crime.
3. While a voluntary confession is insufficient, standing alone to prove that a crime has been committed, it is competent evidence of that fact, and may, with slight corroborative circumstances, be sufficient to warrant a conviction.
4. Circumstances capable of an innocent construction may be interpreted in the light of the defendant's confession and the fact under investigation be thus given a criminal aspect.
5. The corpus delicti may be proved either by direct or circumstantial evidence.
6. The intent with which an act is committed is purely a mental process and difficult to establish by direct proof. It is generally a conclusion that must be drawn after a consideration of the actions of the defendant, viewed in the light of the attendant circumstances.
7. Where, in an instruction dealing with a written statement signed by an accused and received in evidence, the jury is told that if it found that the statement was freely and voluntarily given and signed without fear, compulsion, or inducements, the jury should consider it the same as any other evidence, it is not necessary that the court include in the instruction the requirement that the jury so find beyond a reasonable doubt where the court in other instructions had told the jury that the state was required to prove each and every material allegation of the information beyond a reasonable doubt and defined a reasonable doubt.
8. Where an instruction requires the jury to find beyond a reasonable doubt that a defendant did unlawfully and feloniously steal, take, and carry away certain property of another, and that such taking was with the intent to permanently deprive the owner of said property, it requires the jury to find that the property was taken with a felonious intent.
9. In the absence of a request therefor the trial court is not required to give a cautionary instruction relative to the weighing of circumstantial evidence.
10. It is not the province of this court to resolve conflicts in the evidence in law actions, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are for the jury.
11. Where there is substantial evidence sustaining the jury's verdict, it will not be set aside.
Ely & Ely, Ainsworth, for plaintiff in error.
James H. Anderson, Atty. Gen., Jane E. Moyer, Sp. Asst. Atty. Gen for defendant in error.
Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The State, by information, charged that the defendant on June 8, 1948, in Brown County did unlawfully and feloniously steal, take, and carry away a black cow (particularly described in the information), the personal property of one L. E. Wantz, and of the value of $35 and upwards. The defendant pleaded not guilty. Trial was had resulting in a verdict of guilty. The jury fixed the value of the cow stolen at $136.80. Motion for a new trial was filed and overruled. Defendant was sentenced to imprisonment for a period of 3 years. Defendant appeals. We affirm the judgment of the trial court.
At the close of the State's case-in-chief and again at the close of the case, the defendant moved for a directed verdict of not guilty on the ground that the State had not produced sufficient competent evidence to show the commission of the crime charged in the information. The motions were overruled.
Defendant's first assignment of error is that the court erred in overruling these motions and by argument advances these contentions: (1) That the venue of the alleged offense is not shown; (2) that no corpus delicti was proved; and (3) that there is no evidence that the cow was taken and carried away by defendant with a felonious intent to convert it to his own use.
At the close of the State's case-in-chief, evidence had been received from which the following facts could have been found by the jury.
The defendant and the complaining witness, hereinafter referred to as Wantz, were tenants of adjoining ranch land. The Wantz pasture adjoined the defendant's pasture to the north for one mile. Wantz lived in Johnstown in Brown County. The Wantz pasture was two and a fraction miles from the Wantz home. The location of the buildings on defendant's property is not shown.
At the northwest corner of his land, Wantz had constructed a dam across a ravine to impound spring water for his cattle. There was no other water on the Wantz land. Across the fence line about 100 feet there was a creek of running water on defendant's land, and his garden was nearby. On occasion defendant's cattle got on the Wantz property, as did the Wantz cattle on defendant's property.
On June 6, Wantz had 29 head of cattle of mixed breeds in this pasture, including a bobtailed, three-year-old cow, one-fourth Holstein and three-fourths Angus.
Prior to June 8, defendant made arrangements with a trucker at Woodlake to haul cattle to a sales barn at Atkinson. On the morning of June 8, the trucker came to defendant's place. The cattle were then in a catch pen. They got out of the catch pen twice and mingled with other cattle not to be shipped, but were finally loaded in the truck by defendant and his two minor sons.
The trucker's receipt, admitted in evidence without objection, shows that there were 'Loaded at Clark Ranch' 2 cows and 8 yearling heifers. The trucker without instructions wrote the receipt to 'W. L. Clark' as owner and the post office address as 'Wood Lake.' The defendant signed the receipt 'W. L. Clark.' The cattle were delivered in about two hours at Atkinson. One of the cows was the black cow in question. It was sold on June 8 to a Mr. Moses of O'Neill for $136.80 and taken by him to his ranch. Wantz testified that the value of the cow was about $135.
On June 9, defendant drove to Atkinson, receipted for and collected the money. On June 10, Wantz discovered that 10 of his cattle were missing. He searched for them and on two or more occasions visited with defendant about his missing cattle. Defendant said nothing about any knowledge as to this cow.
Wantz advertised for his cattle and on June 30 reported the loss to the officers of Brown County and the State. They traced the cow through the sales barn records and on July 7 found and identified it in the Moses herd. It was returned to Wantz.
The officers then contacted defendant in Ainsworth, told him what they knew, and informed him he was to be charged with stealing the cow. He voluntarily told them the story, and on that day voluntarily signed a statement prepared by one of the officers. The statement was received in evidence without objection, and is as follows: 'I, William E. Clark, being first duly sworn on oath do depose and say that:
'On the morning of June 8, 1948, at my place in Brown County, Nebraska, I, with the help of two of my boys and the trucker, Merl Sturgeon from Wood Lake, Nebraska, loaded ten head oof (sic) cattle in the truck of Merl Sturgeon, consigned to the salle (sic) at Atkinson, Nebr.
'This is the first time I have ever sold another mans (sic) cattle in my life.
'This is a true story and I have told it without threts (sic) or promises to Sheriff Browns and Otho Kime.'
He was charged formally with the offense on that day and released on bond.
On August 26, defendant's attorney paid Moses $136.80 and $25 expense and care money, and Moses made out and delivered to the attorney a bill of sale to Wantz for the cow. Wantz had no knowledge of and did not consent to the taking, transporting, or selling of the cow.
In summary the evidence of the defendant is that he lived 3 miles west of Johnstown in Brown County; that his residence and buildings were situated 40 to 50 rods west of the water hold on the Wantz land; that the Wantz cattle repeatedly got through the fence and trespassed upon his property principally to get water; and that the Wantz cattle were found repeatedly with the defendant's cattle. He told also of trouble with Wantz over the cutting of trees.
Defendant further testified that on the evening of June 7, his sons brought some 35 or 40 head of cattle into the corral preparatory to shipping some the next day; that there were 12 or 15 Wantz cattle in the bunch; that among those he intended to ship the next day was a black cow; that this cow was among those in the catch pen and escaped; that he thought he had the cow back in and that he...
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