Ford v. State

Citation64 N.W. 1082,46 Neb. 390
PartiesFORD v. STATE.
Decision Date19 November 1895
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Alleged errors in overruling challenges to jurors for cause will not be reviewed by the appellate court where they were not called to the attention of the trial court in the motion for a new trial.

2. Where objection to the materiality or relevancy of testimony is not made when offered, and before it has gone to the jury, ordinarily it should be deemed waived.

3. It is not reversible error to exclude testimony, where the fact attempted to be proved has been fully established by uncontradicted evidence.

4. Where a question is asked a witness on the examination in chief, to which objection is made, and sustained by the court, in order to obtain a review of the ruling, the party desiring the evidence must offer to prove the facts sought to be elicited by the question.

5. The transcript of the record filed in this court imports absolute verity. If incorrect, or it fails to speak the truth, the correction must be made in the trial court, and not in this court.

6. Where the jury are not required to fix the punishment in a criminal prosecution, it is not error for the trial judge to refuse to instruct them as to the penalty prescribed by statute for the offense, or to permit that question to be argued to the jury.

7. 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.

8. Held, that the charge of the court to the effect that every sane person is presumed to intend the natural and probable consequences of his voluntary acts was not only abstractly correct, but was applicable to the case made by the evidence.

9. Held, that the sixth instruction correctly stated the rule relating to the defense of intoxication.

10. It is a well-settled rule that instructions should be construed together, and if, when considered as a whole, they properly state the law, it is sufficient.

11. The supreme court will not reverse a case for the refusing of an instruction, where the substance thereof has been given in other instructions.

12. Evidence examined, and held sufficient to sustain a conviction of larceny as bailee.

Error to district court, Douglas county; Scott, Judge.

Patrick Ford, Jr., having been convicted of larceny, brings error. Affirmed.Mahoney, Minahan & Smyth, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

NORVAL, C. J.

The plaintiff in error stands convicted of the offense of larceny, as bailee, of a diamond ring of the value of more than $35, the property of one Catlin. The material and undisputed facts in the case, as disclosed by the bill of exceptions, are substantially as follows: Patrick Ford, Jr., the plaintiff in error, resided in the city of Fremont. A short time prior to the 7th day of March, 1894, he applied to the superintendent of the Fremont, Elkhorn & Missouri Valley Railroad Company for the position of brakeman on that road, and was informed that in the near future he would be given work. After waiting a few days, he made a visit to his parents' home, in the city of Omaha, and while there, on the morning of the date above stated, he received word to the effect that, if he returned to Fremont, he could secure the promised position as brakeman. He replied that he would be there in the morning. During the day of March 7th he drank intoxicating liquors, and by night he was somewhat under their influence. He continued to drink intoxicants until about 11 o'clock in the evening, when, entering the saloon of Wright & Coleman, on south Twelfth street, he met Charles Catlin, an old acquaintance, and the prosecuting witness. Ford invited Catlin and others to drink with him, which they did. Catlin was wearing a diamond ring of the value of $55, which Ford saw, and the latter said: “That's a nice ring. Let's see it. Take it off.” Catlin removed the ring, handed it to Ford, who put it on his finger, and displayed it to those present. Afterwards Ford suggested that they visit Pat Horrigan's saloon, located at Twelfth and Davenport, and, as they started, Catlin asked for his ring. Ford replied: “I will let you have it in a few minutes. I want to go up there, and flash it.” Upon reaching Horrigan's, they drank together two or three times, and they then went to Martin Shield's saloon, which was just closing, and they passed by, stopping at Ella Mitchell's for a short time. From there they returned to Horrigan's, and, after taking several drinks, they went back to Ella Mitchell's. Both went into the house together, and, after they had been there a few minutes, Ford went out of the back door, saying that he was going to the water-closet. He failed to return, and Catlin did not see him again. About 8 o'clock in the morning of March 8th, Ford, under the assumed name of Meyers, went to the pawn shop of H. Friedman, borrowed $10 of him, and pawned therefor Mr. Catlin's ring. Mr. Ford signed the pawnbroker's book Jim Meyers, 1024 Davenport street.” In the forenoon of the same day Ford went to Fremont, but claims he has no recollection of what he had done, until he awoke about noon, when he found himself in Cannon's grocery store, in Fremont. At this time, Mr. Cannon, with whom he was acquainted, gave Ford a cigar, and the latter, on putting his hand in his pocket, to procure a match with which to light the cigar, discovered the pawn ticket which he had received for the ring. Within a brief period, he wrote a letter to Catlin, informing him what he had done with the ring, and inclosing therein the pawn ticket, which Catlin received the same day. Ford went to work for the railroad company, and two or three weeks later he was arrested for stealing the ring.

The first complaint made in the brief relates to the overruling of the prisoner's challenge for cause of juror Coombs. The ruling just referred to cannot be reviewed, since the attention of the trial court was not challenged to the same by the motion for a new trial. It is too firmly settled in this state to require the citation of authorities in support thereof that allegations of error will be disregarded upon a review of a cause in this court by petition in error, where they are not pointed out in the motion for a new trial.

Upon the trial one John Wright was called and examined as a witness on behalf of the state. On his direct examination he was asked by the county attorney this question: “You may state whether or not that ring which you hold in your hand, which is marked ‘Exhibit I’ in this case, is the ring which you saw on the hand of Pat Ford the evening of March 7th, to the best of your knowledge?” The witness answered, “It is; to the best of my knowledge;” whereupon the defendant moved to strike the answer, as immaterial and incompetent, which was overruled, and an exception was entered. This ruling is presented for review by the second assignment of error. The answer responded to the question. If it was incompetent or immaterial to the issues, an objection should have been made on that ground when the interrogatory was put to the witness. It is too late to raise such objections, after the answer of the witness had been taken, without objection. Palmer v. Witcherly, 15 Neb. 98, 17 N. W. 364;Oberfelder v. Kavanaugh, 29 Neb. 427, 45 N. W. 471;Insurance Co. v. Richardson, 40 Neb. 1, 58 N. W. 597. In no event, even though this evidence was incompetent, could a reversal be had for that reason, since it was conclusively established by other uncontradicted testimony that Exhibit I was the identical ring which Mr. Catlin owned, and which he let the prisoner have. Moreover, we are satisfied that the testimony of Mr. Wright, to which objection was made, was admissible. True, the witness testified concerning the identity of the ring to the best of his knowledge. It was only from his knowledge of the matter that he could speak. If the defendant had desired to ascertain the witness' means of information of the matter, he should have interrogated him in regard thereto.

The third, fourth, fifth, seventh, and eighth assignments of error are not well taken. They are based upon the refusal of the trial court to permit certain witnesses to answer questions framed for the purpose of eliciting the condition of the defendant, as to his being under the influence of liquor, on March 7th. It has already been shown that the defendant was drinking heavily, where, how often, and the kind of liquors he drank, and the effect they had upon him. There was no dispute among the witnesses upon that point, and, had the testimony excluded been received, it only would have been cumulative in its nature.

By the ninth assignment is presented the ruling of the court in sustaining the objection of the state to the question asked the accused as to whether or not he had any sleep between the time he left Mitchell's place and the time he reached Fremont. The decision of the court upon this point cannot be reviewed, since no offer was made in the court below to prove the fact sought to be elicited by the interrogatory. Commissioners v. Kent, 5 Neb. 227; Masters v. Marsh, 19 Neb. 458, 27 N. W. 438;Mathews v. State, 19 Neb. 330, 27 N. W. 234;Lipscomb v. Lyon, 19 Neb. 511, 27 N. W. 731;Connelly v. Edgerton, 22 Neb. 82, 34 N. W. 76;Burns v. City of Fairmont, 28 Neb. 866, 45 N. W. 175.

Two assignments (the tenth and eleventh) relate to the remarks of the trial judge during the argument of the cause to the jury. In support of the charge of misconduct imputed to the judge were read the affidavits of the accused, his attorney, C. J. Smyth, W. S. Showmaker, Lee Herdman, and Oscar J. Pichard. Opposing these are the affidavits of Mr. Slabaugh, the deputy county attorney, and Mr. Henderson, the...

To continue reading

Request your trial
16 cases
  • Hans v. State
    • United States
    • Nebraska Supreme Court
    • January 7, 1897
    ... ... 209, 18 N.W. 129, it was asserted that the ruling on a plea ... in abatement could be reviewed without having been assigned ... as error in the motion for a new trial. (See ... O'Donohue v. Hendrix , 13 Neb. 255; Graves v ... Scoville , 17 Neb. 593, 24 N.W. 222.) In Ford v ... State , 46 Neb. 390, 64 N.W. 1082, it was ruled that ... alleged errors in overruling challenges to jurors are not ... available when not called to the ... [69 N.W. 840] ... attention of the trial court in the motion for a new trial, ... since such rulings occurred during the trial ... ...
  • State v. Peters
    • United States
    • Idaho Supreme Court
    • February 15, 1927
    ... ... The ... general rule is that the intent necessary to constitute the ... offense of embezzlement may be inferred from the knowing and ... intentional misappropriation of funds or property entrusted ... to the defendant's care. ( United States v ... Harper, 33 F. 471; Ford v. State, 46 Neb. 390, ... 64 N.W. 1082; State v. Merkel, 189 Mo. 315, 87 S.W ... 1186; State v. Kortgaard, 62 Minn. 7, 64 N.W. 51; ... Hagood v. State, 5 Ga.App. 80, 62 S.E. 641.) ... A ... charge on a hypothetical statement of facts, declaring the ... legal result thereof, or ... ...
  • Hans v. State
    • United States
    • Nebraska Supreme Court
    • January 7, 1897
    ...for a new trial. See O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. 215;Graves v. Scoville, 17 Neb. 593, 24 N. W. 222. In Ford v. State, 46 Neb. 390, 64 N. W. 1082, it was ruled that alleged errors in overruling challenges to jurors are not available when not called to the attention of the tri......
  • Leick v. People
    • United States
    • Colorado Supreme Court
    • January 13, 1958
    ...be reviewed, since no offer was made in the court below to prove the fact sought to be elicited by the interrogatory.' Ford v. State, 46 Neb. 390, 64 N.W. 1082, 1083. It is to be noted that the testimony is obscure on the nearness in time after the event that the clergyman first became acqu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT