Davis v. State

• Decision Date: 17 March 1898
• Citation: 74 N.W. 599,54 Neb. 177
• Parties: DAVIS v. STATE.
• Court: Nebraska Supreme Court

54 Neb. 177

74 N.W. 599

DAVIS

v.STATE.

Supreme Court of Nebraska.

March 17, 1898.

Syllabus by the Court.

1. In a prosecution for the statutory crime of larceny by a bailee, the gravamen of the charge is the felonious conversion, and the intent may be shown to have been entertained as of the time of the reception of the possession of the property or to have arisen during the continuance of such possession.

2. The burden of proof in a criminal action does not shift to the defendant, but rests with and on the state.

3. A portion of a statement contained in an instruction criticised, but the entire instruction held not open to the objection urged against it.

4. In the trial of a criminal cause the general rule operates the exclusion of evidence of the commitment by the accused of a crime or crimes separate and distinct from that on a charge of which he is being tried. To this rule there are exceptions, but in the case at bar reasons did not exist for the departure from the general doctrine.

Error to district court, Otoe county; Ramsey, Judge.

Sam Davis was convicted of larceny, and brings error. Reversed.Warren & Jackson, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

HARRISON, C. J.

On May 17, 1897, an information was filed in the district court of Otoe county, in which the plaintiff in error was charged with the crime of larceny as bailee, the property said to have been appropriated being one bay gelding, a buggy, and set of harness. To the charge on arraignment he pleaded not guilty, was placed on trial, convicted, and subsequently sentenced to confinement in the penitentiary for a term of three years. A reversal of the judgment is sought in error proceedings to this court. It was developed in evidence herein that on or about April 29, 1897, the plaintiff in error arrived in Nebraska City, and announced to parties whom he met and with whom he conversed that he “was advance agent” for Ringling Bros., who were conducting a circus; also that the circus would appear and give an exhibition or performance in Nebraska City of date May 29, 1897. The plaintiff in error claimed to be in Nebraska City at the time we have indicated for the purpose of perfecting arrangements for the appearance of the circus there at the later date stated by him, and partially to make contracts for certain articles and supplies which would be necessary for use by the circus company, its employés, etc., when in the city. He made contracts with different parties, and on April 30th, near noon, secured from a firm, then and there running a livery stable, the horse, buggy, and harness which it was alleged he subsequently converted to his own use with a felonious intent. At the time he obtained the horse and buggy he stated that he wanted to drive around town, would be out about an hour, and then return to the barn with the “rig.” Instead of doing as he stated, he drove to Shenandoah, Iowa, where he placed the property in charge of a livery-stable keeper to be cared for, etc. The owner of the horse and buggy became uneasy when the plaintiff in error did not return to the barn as promised, and in the afternoon, at 2 or 3 o'clock, reported the matter to the officers. The sheriff sent telegrams to several towns, one of which was Shenandoah, asking for information in regard to plaintiff in error and the property. To the queries sent to Shenandoah the sheriff received an answer which conveyed to him knowledge of the objects of his search. The arrest of the plaintiff in error was ordered and effected, and later he was by the sheriff brought back to Nebraska City, and a prosecution for the alleged crime instituted, with the result we have hereinbefore stated.

It is of the argument that the trial court erred in that it instructed the jury before which the issues were tried so as to allow a conviction on evidence of a conversion of the property on an intent to commit such act formed by plaintiff in error subsequent to the time he obtained possession of it; and in this connection it is urged that, if he did not at the time of taking possession have the intent to feloniously appropriate it to his own use, he could not be convicted of the crime charged. This contention is untenable. In the case of Ford v. State (opinion written by Norval, C. J.), reported in 46 Neb. 390, 64 N. W. 1082, the defendant was charged with larceny as bailee as was the plaintiff in error in the case at bar, and the same argument was made in that case in this court in regard to an instruction given as is made in this case. It was then said: “In a prosecution for larceny as bailee, an instruction which fails to charge that the original taking of the property must be felonious is not for that reason erroneous. The gist of the offense in such a prosecution is the conversion of the property, without the knowledge and consent of the owner thereof, with the intent to steal the same.” “It is argued that this instruction is fatally defective in that it omitted the element of ‘felonious taking,’ and Mead v. State, 25 Neb. 444, 41 N. W. 277, and Barnes v. State, 40 Neb. 545, 59 N. W. 125, are cited to support the proposition. Those cases are clearly distinguishable from the one at bar. They were prosecutions for simple larceny, while this is for larceny as bailee. In the decisions referred to the original taking must have been felonious in order to constitute the offense charged, while such is not the case in a prosecution like this. Here the gist of the offense is not the felonious taking of the ring, but the conversion thereof by Ford, without the knowledge and consent of the owner, with the intent to steal it. The statute under which the information in this case was filed (section 121b of the Criminal Code) declares ‘that if any bailee of any money, bank bill, or note, goods, or chattels shall convert the same to his or her own use, with an intent to steal the same, he shall be deemed guilty of larceny, in the same manner as if the original taking had been felonious.’ The instruction includes every element of the offense described in the statute.” The doctrine announced in that case is applicable to and decisive of the question herein raised, and it follows that the argument presented is unavailing.

Objection is urged against the eleventh paragraph of the instructions, which was as follows: “You are instructed that one of the defenses interposed by defendant in this case is that at the time he procured the property in question from Levi Bros. he was under the influence of intoxicating liquors; that he was incapable of forming an intent to steal, and for that reason claims he is not guilty. Drunkenness, in law, is no excuse for the commission of crime. If the state has proved, beyond a reasonable doubt, that defendant, at and within the county of Otoe and state of Nebraska, at or about the time alleged in the information, temporarily obtained the...