Cohoe v. State

• Decision Date: 05 December 1908
• Docket Number: 15,780
• Citation: 118 N.W. 1088,82 Neb. 744
• Parties: JUDGE P. COHOE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

118 N.W. 1088

82 Neb. 744

JUDGE P. COHOE v. STATE OF NEBRASKA

No. 15,780

Supreme Court of Nebraska

December 5, 1908

ERROR to the district court for Nemaha county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

E. B Quackenbush, for plaintiff in error.

William T. Thompson, Attorney General, Grant G. Martin, H. A. Lambert and E. Ferneau, contra.

BARNES C. J. ROSE, J., not sitting.

OPINION

BARNES, C. J.

The plaintiff herein, who was the defendant in the district court, and will be so designated, was convicted of the crime of larceny as bailee, and has brought the case here for review.

It appears that the information on which he was tried contained two counts; one charging him with the larceny of $ 1,000 in gold, under the provisions of section 114 of the criminal code, and the other charging him with the larceny of the same money as bailee, as defined by section 121b of the criminal code. At the close of the state's evidence the defendant moved to require the prosecutor to elect upon which of the counts he would rely for a conviction. The motion was overruled, and this ruling is assigned as error. The defendant contends that the information charged him with two separate and distinct felonies, based on two different sections of the statutes, which denounce different crimes inconsistent and repugnant to each other, and that it was prejudicial error to try him upon both of those counts at the same time, for the reason that in a felony case "only a single issue will be permitted to go to the jury." This contention is presented by defendant's counsel in his argument and brief with much skill and unusual ability. Without doubt the general rule is that a defendant in a felony case should not be tried upon two distinct and separate charges, and that only a single issue should be permitted to go to the jury. But to this rule there are some exceptions, as we shall presently see. Where the same act constitutes different offenses, the rule is that they may be charged in separate counts in one information, and it is competent and proper "to vary the charge by means of several counts, when the offense is the same, for the purpose of meeting the different phases of the evidence which may be adduced at the trial." 10 Ency. Pl. & Pr. 543. Every cautious pleader will insert as many counts as will be necessary to provide for every possible contingency in the evidence, and this the law permits. Wharton, Criminal Pl. & Pr., sec. 297; Furst v. State, 31 Neb. 403, 47 N.W. 1116. The right to require the prosecutor to elect is confined to cases where the information or indictment contains charges which are actually distinct, and which grow out of different transactions, and the court will not compel the prosecutor to elect where it appears by the indictment that the charges relate to the same transaction modified to meet the proof. Candy v. State, 8 Neb. 482, 1 N.W. 454. In the case of Butler v. State, 91 Ala. 87, 9 So. 191, the defendant was charged in one count of the indictment with the larceny of a horse, and in another count with the fraudulent conversion of the same horse. The court held that the two counts were properly joined, and that the defendant has no legal right to compel the state to elect upon which it would ask a conviction. In the opinion it was said: "The court will not exercise its power to compel an election, unless it appears, either from the indictment or the evidence, that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions." In Commonwealth v. Shutte, 130 Pa. 272, 17 Am. St. Rep. 773, 18 A. 635, the indictment contained two counts; one charging robbery, and the other larceny as bailee. The defendant was acquitted of the charge of robbery, and convicted of the charge of larceny as baileee. Both charges in the indictment related to the same property, and to one and the same transaction. The defendant there contended that the two charges were improperly joined, and the court in passing on the question said: "Nor do we think there was a misjoinder. While the evidence is not given, it is manifest that both counts were for substantially the same offense. The higher offense was not proved but the defendant was convicted of the larceny as bailee of the same property referred to in the first count. The offense charged in the second count was not repugnant to that charged in the first. It was a constituent part of the same offense." It has been held that, where it is doubtful whether an alleged offense is larceny or a conversion of property by a bailee with intent to steal, the indictment may contain two counts; one charging the felonious taking, and the other the felonious conversion. People v. Bogart, 36 Cal. 245.

In the case at bar it appears from the evidence that one Ulbrich had, before the time alleged in the information, been found insane, and one Boyd had been appointed his guardian. Ulbrich, shortly before his insanity, had sold property and received several thousand dollars therefor. The guardian was unable to find the money which it was supposed Ulbrich possessed. It was believed that he had concealed it upon his premises in Auburn, where he resided at the time he became insane. The defendant rented the premises of the guardian, and was living there with his family at the time of the transaction complained of. It is conceded that the defendant found the money, which he is charged with having stolen, upon the premises in question; that soon after finding the gold he took it to Nebraska City, squandered part of it, then went to Omaha, afterwards returned to Auburn, and stated that he had lost all the money while drunk, except $ 145 in gold, which he returned to the guardian. He claimed that he had been authorized to take possession of the gold, and that his wrongdoing consisted in not returning it to the guardian as he had been instructed to do. The prosecution also claimed that he had no authority to take possession of the gold, but that it was his duty, if he found it, to inform the guardian, and there is some evidence tending to support this contention, and that he intended from the first to find it, if he could, and convert it to his own use. It appears, however, that upon a former occasion he reported that he had found $ 50 upon the premises, and had returned it to the guardian and received a reward therefor. Later he reported to the guardian that he had found some money, but his statements in regard to it and in regard to the amount that he had found were confusing and evasive. He first reported that at this second finding the amount was $ 800, but afterwards admitted that it was $ 1,800, and finally, after much hesitancy and quibbling, gave the $ 1,800 to the guardian. He demanded a share of this money for his services, and was allowed a liberal reward. On the other hand, there is clear and substantial evidence in the record that the defendant was authorized and instructed by the guardian to look out for hidden money while he was making certain repairs on the premises, and, if he found it, to deliver it to him. It appears that the guardian rented the place to the defendant at the agreed price of $ 100 a year; that the defendant was to pay for the first six months' rent by labor on the place, and the next six months he was to pay cash. The guardian testified that, "when (the defendant) started to fix up this place, I told him to be particularly careful when he changed anything in the way of plastering and cupboards or boards, or anything of that kind; that I thought Ulbrich had hidden some money there, and, as I was unable to find anything up to that time, I wanted him to be particularly careful and make a thorough search for it." It appears that when the defendant found the $ 1,800 he went with the guardian to the county judge, and he was instructed by them that, if he found any more money there, he should bring it either to Mr. Boyd or the county judge at once and turn it over to them. They both testified that the defendant promised he would do so; that they repeated the injunction to him several times, and cautioned him about it, saying: "If you find any more money down there, you bring it to us." They further testified that he promised he would do so. They said "he not only promised he would, but appeared sincere in it." After these instructions, it appears that the defendant found $ 1,000 in gold, which is the money in question, and disposed of it in the manner above described. It can readily be seen that the prosecutor, in order to meet this state of the evidence, deemed it necessary, as a matter of precaution, to charge the offense in the two counts set forth in the information. We think he was justified in pursuing that course, and the district court did not err in refusing to require him to elect upon which count of the information he would rely for a conviction.

Defendant further contends that the judgment should be reversed because of the...