Ferguson v. State

• Decision Date: 20 October 1897
• Citation: 72 N.W. 590,52 Neb. 432
• Parties: FERGUSON v. STATE.
• Court: Nebraska Supreme Court

52 Neb. 432

72 N.W. 590

FERGUSON

v.STATE.

Supreme Court of Nebraska.

Oct. 20, 1897.

Syllabus by the Court.

1. It is a familiar principle that a breaking necessary to constitute the crime of burglary may be by any act of physical force, however slight, by which the obstruction to the entering is removed.

2. The lifting of a hook, with which a door is fastened, or the opening of a closed door in order to enter a building, is a “breaking,” within the accepted definition of burglary, although the entry might have been effected through a door already open.

3. A slight error in an instruction will not work a reversal where it is evident that the party complaining could not have been prejudiced thereby.

4. Proof that the burglary was committed on the precise day laid in the information is not essential to a conviction. It is sufficient if it be proved that the crime was committed within the period limited by statute for the prosecution of the offense.

5. In a prosecution for burglary it is not error to instruct the jury that it was sufficient to find that the crime was committed “on or about” the date in the information, or at any date within the statute of limitations.

6. Held, that instruction No. 8 given by the court on its own motion does not assume that a burglary had been committed. Metz v. State, 65 N. W. 190, 46 Neb. 547, distinguished.

7. An instruction which defined a reasonable doubt as being an actual, substantial doubt of guilt arising from the evidence or want of evidence in the case upheld.

8. One cannot predicate error upon a vague instruction unless he has requested a proper one.

9. Where, in a criminal prosecution, a defendant does not testify in his own behalf, it is not reversible error for the trial court to mention such neglect or omission in its instructions, when followed in the same connection with the direction that “nothing must be taken against him because he had not so testified.”

10. It is not reversible error to fail to instruct on the subject of an alibi, where no request to charge upon that feature of the case has been tendered.

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

Charles Ferguson was convicted of burglary, and he brings error. Affirmed.Bane & Altschuler, for plaintiff in error.

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

NORVAL, J.

The defendant, Charles Ferguson, was prosecuted for, and found guilty of, the crime of burglary, and from a judgment of conviction error proceedings have been prosecuted to this court. The information charges the crime to have been committed by breaking and entering, in the night season, a certain barn owned by Adolph Zimmerer, with the intent to commit a larceny.

The first contention is that the evidence is insufficient to sustain the verdict. The testimony adduced by the state on the trial, and which is incorporated in the bill of exceptions, establishes beyond a shadow of a doubt that during the night of the 28th day of May, 1896, the accused entered the barn of the prosecuting witness, in Otoe county, and stole therefrom a set of harness. That the door through which the entry was effected was a double door, sawed in two parts, one being immediately above the other. In the evening in question the upper door was left standing open, while the other was fastened, closed with a hook and staple. That the defendant raised this hook, and opened the lower door, in order to enter the barn. The point is made, in argument, that this did not constitute a breaking and entering, or a burglary, because, the upper door being open at the time, there was no obstruction of the free ingress to or egress from the barn. That a person could have bounded over the lower door, and entered the building, is wholly immaterial, unless the entrance was actually effected in that manner which the proofs disclose was not the case. The question was not whether the defendant could have entered the barn without a breaking, had he so desired, but, did the lifting of the hook and opening the door which it fastened constitute a breaking, within the meaning of the law? The answer must be in the affirmative. State v. O'Brien, 81 Iowa, 88, 46 N. W. 752. In Metz v. State, 46 Neb. 547, 65 N. W. 190, it was decided that a breaking, to constitute the crime of burglary, may be by any act of physical force, however slight, by which the obstruction to entering is removed. This is a familiar principle of criminal law, and, applying it to the facts in this case, there is no room to doubt that there was a “breaking” within the definition of burglary.

In the sixth instruction the jury were told that, if the defendant, with a felonious intent, entered the barn “by opening a door or removing a window,” it constituted burglary. The instruction is not assailed because it gave an incorrect definition of the crime charged, but that the use of the words “or removing a window” injected a matter not in evidence. This criticism is well founded, but we are unwilling to predicate a reversal upon that slight error, since it is very evident that the rights of the defendant were in no manner prejudiced by this slight inaccuracy in the instruction. Converse v. Meyer, 14 Neb. 190, 15 N. W. 340;Stock Co. v. Lamb, 38 Neb. 339, 56 N. W. 1019;Debney v. State, 45 Neb. 856, 64 N. W. 446.

Exceptions are taken to the giving of the following instructions: “(7) The court instructs the jury that the allegation of time in the information filed in this case is only material for the purpose of fixing the commission of the crime within the statute of limitations, which, in the state of Nebraska, is three years for the crime of burglary. And if you find from the evidence, beyond a reasonable doubt, that the defendant forcibly, feloniously, and burglariously did, on or about the 28th day of May, 1896, in the night season, at the place charged in the information, break and enter the barn of Adolph Zimmerer,by opening a closed door, as explained in these instructions, and after so entering said barn of said Adolph Zimmerer did feloniously take therefrom any property of any value belonging to said Adolph Zimmerer, then your verdict should be guilty as charged in the information.” The objection to this portion of the charge is twofold: First. The authorization of a conviction if the offense was committed at any time within the statute of limitations is claimed to be wrong. The decisions are the other way. The identical question was passed upon in Palin v. State, 38 Neb. 862, 57 N. W. 743, where this language was used: “The allegation in the information as to the time the crime was committed is not material. The state was not required to prove that the transaction occurred on the day alleged, but it is sufficient if proven to have been committed within the time limited by the statute for the prosecution of the offense.” In Yeoman v. State, 21 Neb. 171, 31 N. W. 669, the same principle was stated and applied. The question has been set at rest by those decisions, if, indeed, it was ever a doubtful one in this state. The instruction quoted is further criticised for the use of the words “on or about.” Time was not of the essence of the offense, and it was not error to direct the jury that it was sufficient to find that the crime was committed on or about the time charged in the information. State v. Fry, 67 Iowa, 475, 25 N. W. 738;State v. Williams (Wash.) 43 Pac. 15;State v. Thompson (Mont.) 27 Pac. 349;State v. Harp (Kan. Sup.) 3 Pac. 432.

The next assignment of error relates to the giving of the following portion of the eighth instruction: “(8) The jury are instructed that under an information for burglary the accused may be found guilty of larceny; and if, in this case, the jury are not satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the burglary as charged in the information, still, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant did steal the goods described in the information from the possession of the said Adolph Zimmerer, then the jury may, under this information, find the defendant guilty of larceny.” The objection brought forward against the foregoing is that it assumed that a burglary had been committed, and withdrew that question of fact from the consideration of...