Elliott v. State
| Decision Date | 24 February 1892 |
| Citation | 51 N.W. 315,34 Neb. 48 |
| Parties | ELLIOTT v. STATE. |
| Court | Nebraska Supreme Court |
1. In a prosecution for the larceny of 33 horses, and also for receiving the same knowing them to have been stolen, an affidavit for a continuance was filed by the accused, which was overruled. Held, that the facts stated in the affidavit were sufficient to entitle the party to a continuance.
2. Where the accused was a witness in his own behalf, the prosecuting officer, on cross-examination, asked him, and other similar questions not connected with the crime charged. Held improper and prejudicial.
3. An instruction in a criminal case that “you should be satisfied of the truth of the material allegations contained in the particular count of the information,” without stating from what the jury was to be satisfied or the degree of proof required to convict, is erroneous.
4. Instruction set out in the record as No. 4, held to contain matter prejudicial to the accused.
Error to district court, Cheyenne county; HAMER, Judge.
Prosecution against Bush Elliott for the larceny of certain horses. Verdict of guilty, and judgment thereon. Defendant brings error. Reversed and remanded.Thomas H. Matters, for plaintiff in error.
Wm. A. Leese, Atty. Gen., for the State.
The plaintiff in error was informed against by the county attorney of Cheyenne county upon two counts: First, for the larceny of 17 geldings and 16 mares, the property of Wyatt and Abington, of the value of $1,485; and, second, for receiving said property knowing it to have been stolen. On the trial of the cause he was found guilty, and sentenced to imprisonment in the penitentiary for five years. A number of errors are assigned.
1. That the court overruled a motion for a continuance. It appears from the record that the plaintiff in error had an examination, on the charges above stated, before the county judge of Cheyenne county on the 2d day of June, 1888, and was required to give bonds in the sum of $1,000, in default of which he was committed to jail, and remained there until the trial. It also appears that on the 24th of July of that year the county attorney of that county filed the information in question; that on the 23d of July, there being an adjourned term of the district court, the plaintiff filed an affidavit for a continuance, which motion was overruled. Again, on the 31st of that month, he filed a second motion, supported by affidavits, which was also overruled, and this is the first error complained of. The affidavits in support of the motion show due diligence of the plaintiff, under the circumstances; that certain witnesses named would testify to certain facts, which are set out, which will tend to show that the plaintiff had not stolen the horses referred to, or knowingly received stolen property. The plaintiff's affidavit is very long, and will not be set out at length in the opinion, but sufficient is shown to entitle the plaintiff to a continuance for a sufficient length of time to enable him to procure the witnesses named. It is not the policy of the law, particularly in a case like that under consideration, where there is doubt about the guilt of the accused, to compel the party to go to trial until a reasonable opportunity has been given to procure the attendance of witnesses.
2. That the court erred in permitting the county attorney to ask questions calculated to prejudice the minds of the jury. The plaintiff was a witness in his own behalf, and, on cross-examination, the county attorney asked the accused the following questions: And other questions of like character. Such cross-examination is highly improper, and cannot fail to be prejudicial. A prosecuting officer, in his zeal to enforce the law, must not forget that he also occupies a semi-judicial position, and that his duty requires him to resort to no questionable or improper means to secure a conviction. The emblem...
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