Egan v. State

• Citation: 97 Neb. 731,151 N.W. 237
• Decision Date: 12 February 1915
• Docket Number: No. 18699.,18699.
• Parties: EGAN v. STATE.
• Court: Nebraska Supreme Court

97 Neb. 731

151 N.W. 237

EGAN

v.STATE.

No. 18699.

Supreme Court of Nebraska.

Feb. 12, 1915.

Syllabus by the Court.

The statute provides that an indictment for larceny of personal property may also contain a count for receiving or for concealing the same. Rev. St. 1913, § 9057.

In a prosecution for receiving stolen property, it is necessary to allege and prove that the defendant knew that the property was stolen. Evidence that he participated in the larceny is competent for that purpose. The conviction will not be reversed because the defendant is also charged with the larceny.

Receiving property in this state, knowing it to be stolen and with intent to defraud the owner, may be prosecuted in this state, although it was stolen in a foreign state.

The district court did not err in refusing to order a juror to appear and make affidavits of matters occurring in the jury room which would not amount to such misconduct of the jury as to require the court to set aside the verdict.

In a prosecution for receiving stolen property, it must be alleged and proved that the defendant received the property, knowing it to have been stolen and with intent to defraud the owner thereof.

A memorandum of items of money paid by the witness is not competent in evidence as a book account.

Error to District Court, Dawes County; Westover, Judge.

Michael Egan, Sr., was convicted of receiving stolen property, and brings error. Reversed and remanded.J. J. Harrington, of O'Neill, Lee Card, of Chadron, and M. F. Harrington, of O'Neill, for plaintiff in error.

Grant G. Martin and Frank E. Edgerton, both of Lincoln, for the State.

SEDGWICK, J.

This defendant was convicted in the district court for Dawes county of the crime of receiving stolen property and has brought the case here for review by petition in error.

[1][2][3] 1. The information contains three counts. The first count charged that the defendant and his son John Egan, in the county of Dawes, state of Nebraska, did unlawfully and feloniously steal, take, and carry away one mare, the personal property of one William Hanna. The second count charged the same defendants with receiving the stolen property, knowing that it was stolen, with intent to defraud the owner, and the third count charged the same defendants with concealing the same property. The jury found the defendant John Egan not guilty. The evidence shows that the property was in South Dakota, and, if it was stolen, was stolen in that state.

The defendant insists that the prosecution knew before the complaint was made that the animal was kept in South Dakota and that if stolen it must have been stolen in South Dakota, and that therefore the defendants could not be convicted upon the first count of the information; that the whole object in charging these defendants with stealing the property was to prejudice the jury against them in the other counts of the information; that the defendant was prejudiced thereby, and therefore has not had a fair trial. This contention is very earnestly presented and elaborately argued in the brief. It is said in the brief:

“A man may be charged with larceny, and some of the jurors may believe him guilty of larceny and others not guilty, and if the prosecution be confined to the one count it would result in a disagreement or an acquittal. But you join with it a count for receiving the same property, knowing it to be stolen, and some of those who would acquit him of larceny may believe him guilty of receiving stolen property. You charge him in another count with concealing stolen property, and some of those who would acquit him both of larceny and of receiving stolen property with intent to defraud the owner will believe that he concealed the stolen property, knowing it to be stolen. In other words, he has to meet and defend three charges, and not one, and he has to take his chances of an acquittal as against men some of whom believe him guilty of one count and innocent on another. The result is that the state has a tremendous advantage because those who may believe him guilty on one count would not be able to convict him. But you get enough men believing him guilty on one count, and some more guilty on another count, and some more on still another count, and the end is a conviction by compromise of some kind.”

This is putting it pretty strong, and there may be some ground for such reasoning; but the same reasoning would apply to any and all cases in which there are more than two counts in an information, and we are not prepared to hold that the prosecutor cannot join different counts in an information.

It is said that there is no evidence in the case tending to show that the property was stolen in this state, and that a charge that it was so stolen was made for the purpose of allowing the prosecution to bring matters into the case for the purpose of prejudicing the defendant, and that such practice ought not to be allowed. In a prosecution for receiving stolen property, it is necessary to allege and prove the name of the owner of the property, if known, and that the defendant knew that the property was stolen and received it with the intention of defrauding the owner. It would seem that, without the count charging the defendant with having stolen the property, evidence that he did in fact steal the property might be competent as tending to show that he knew that it was stolen, and so, if the property had been stolen in a foreign country, evidence tending to show that the defendant participated in the larceny would, of course, show that he knew the property to be stolen--a necessary element to be proven.

It appears that the defendant and his sons owned and were using several tracts of land, all near the state line, some of them in the state of South Dakota and some in this state, and that Mr. Hanna received this animal from one of the defendant's sons some time in March, 1913. The animal was kept on Mr. Hanna's ranch, which adjoined the ranch of the defendant's son, and was situated in the state of South Dakota, near the state line.

The animal was allowed to run upon the range and might have been in either state when stolen. We cannot see that the bitter charges of fraud against the prosecution are very substantially sustained. Our statute makes larceny and receiving stolen property and concealing stolen property three distinct offenses. It has been held that stealing property in another state is not a crime that can be prosecuted in this state. Van Buren v. State, 65 Neb. 223, 91 N. W. 201. It has also been held that receiving property in this state which has been stolen in another state may be prosecuted in this state. In re Loomis, 84 Neb. 493, 121 N. W. 456, 28 L. R. A. (N. S.) 750, 18 Ann. Cas. 1024. Our statute also expressly provides that these several counts may be united in one information. Rev. St. 1913, § 9057. We think that this contention of the defendant is without merit.

[4] 2. Before filing his motion for a new trial, the defendant applied to the court for an order requiring the foreman of the jury to appear and give testimony as to matters that took place in the jury room. The court refused to make such order, and this ruling is now alleged as prejudicial error. With this application the defendant filed an affidavit of his attorney in regard to statements made by the juror immediately after the verdict was rendered. It is insisted that these statements show that the witness would testify to matters that occurred in the jury room that would make the jurors themselves competent witnesses, and that the juror had refused to make an affidavit in regard to the matter. The affidavit stated a number of considerations that it is...