Cowan v. State

• Decision Date: 30 November 1887
• Citation: 22 Neb. 519,35 N.W. 405
• Parties: COWAN v. STATE.
• Court: Nebraska Supreme Court

22 Neb. 519

35 N.W. 405

COWAN

v.STATE.

Supreme Court of Nebraska.

November 30, 1887.

Syllabus by the Court.

Where it appears that the charge in the preliminary examination was substantially the same as that set forth in an information filed in the district court, the plea of want of preliminary examination will be unavailing.

Where it is claimed there was no preliminary examination of a party accused of crime before filing an information against him in the district court, the question should be raised by a plea in abatement.

Except in cases where it is necessary to show guilty knowledge, it is not admissible to prove that at another time the accused committed, or attempted to commit, a crime similar to that with which he stands charged.

The court, in defining a reasonable doubt, said: “It is a doubt for having which the jury can give a reason based upon the testimony.” Held erroneous, and calculated to mislead.¹

Respecting “reasonable doubt” in criminal cases, see Knarr's Appeal, (Pa.) 9 Atl. Rep. 878;People v. Lee Sare Bo, (Cal.) 14 Pac. Rep. 310;McCullough v. State, (Tex.) 5 S. W. Rep. 175;White v. State, (Tex.) 3 S. W. Rep. 710, and note; U. S. v. Jackson, 29 Fed. Rep. 503, and note; People v. Kernaghan, (Cal.) 14 Pac. Rep. 566.

Where, in an information against a party for obtaining money by false pretenses it is alleged that “by reason of the false pretenses” the accused obtained the money the words of the statute being “by false pretense,” held, the allegation was sufficient.

In a prosecution against a party for obtaining money under false pretenses from a bank, the note given by him for the money, and mortgage to secure the same, when introduced in evidence, are sufficient in that case to prove the de facto existence of the bank. People v. Hughes, 29 Cal. 260;Bank v. Harding, 1 Neb. 461.

Error to district court, Valley county.

M. Randall and E. W. Metcalfe, for plaintiff.

The Attorney General, for defendant.

MAXWELL, C. J.

The plaintiff was convicted of the crime of obtaining money under false pretenses, in the district court of Valley county, and sentenced to imprisonment in the penitentiary. The charge in the information on which he was convicted is as follows: “That on or about the twelfth day of March, in the year of our Lord one thousand eight hundred and eighty–six, in the county of Valley, and state of Nebraska, one William Cowan unlawfully and feloniously did falsely pretend to the First National Bank of Ord, Valley county, Nebraska, a corporation organized under the laws of the United States, and doing business in Valley county, Nebraska, that he, the said William Cowan, was the owner of forty red cows branded with a heart on the right hip, fifteen red and white cows branded with a heart on right hip, two white cows branded with a heart on right hip, one red bull three years of age branded with a heart on right hip, one black stallion colt three years of age, and one bay mare colt three years of age, and after having conveyed to the First National Bank of Ord aforesaid the above–described property by chattel mortgage, obtained from the said First National Bank of Ord, by reason of the false pretense aforesaid, two hundred dollars in money, of the value of thirty–five dollars and upwards, to–wit, of the value of two hundred dollars, with the intent then and there and thereby unlawfully and feloniously to cheat and defraud said First National Bank of Ord of the two hundred dollars so as aforesaid falsely and fraudulently obtained, whereas in truth and in fact he, the said William Cowan, was not the owner of the forty red cows aforesaid, and was not the owner of the fifteen red and white cows aforesaid, and was not the owner of the one red bull aforesaid, and was not the owner of the one bay mare aforesaid, and was not the owner of the one black stallion aforesaid; he, the said William Cowan, then and there well knowing said false pretense to be false.”

A motion was filed to quash this information, which motion was overruled, which is now assigned for error. The principal ground relied upon for quashing the information was that it did not appear that there had been any preliminary examination of the accused for the specific offense charged in the information before instituting this prosecution in the district court. It does appear, however, that a complaint was filed against the accused charging him with mortgaging property to which he had no claim or title, and thereby procured the money which it is alleged he fraudulently obtained. This, in our view, is sufficient, and it is apparent that the offense charged in the complaint is the same as that for which the accused now stands charged in the information. The proper mode of raising an objection of that kind is by a plea in abatement, and not by motion. This objection was, therefore, properly overruled.

2. It is claimed that the information is insufficient because of the words of the charge, “by reason of the false pretenses” he obtained the money, instead of the statutory words, “by false pretense or pretenses;” but in our view the words used in the information mean substantially the same as the statutory words. The objection to the information, therefore, is unavailing.

3. In the examination of the jurors on their voir dire, one W. D. Castor was sworn and examined as follows: “Did you say you had formed an opinion as to the guilt or innocence of the defendant as to the particular crime of which he is charged? Yes, sir. From what source did you derive that opinion? From what I heard from the different parties. Parties interested in the transaction? I think there is one of them. Relative of the defendant? No, sir. Parties who claimed to own the property? No, sir. From what you heard you formed an opinion as to his guilt or innocence? I did. Have you that opinion still? I have it yet; yes, sir. Is that a positive opinion, or conditional upon what you heard being true? Of course it is on what I heard being true. Notwithstanding...