Francis v. State

• Decision Date: 15 December 1919
• Docket Number: 21004
• Parties: JOHN ROBERT FRANCIS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

175 N.W. 675

104 Neb. 5

JOHN ROBERT FRANCIS v. STATE OF NEBRASKA

No. 21004

Supreme Court of Nebraska

December 15, 1919

ERROR to the district court for Cedar county: GUY T. GRAVES, JUDGE. Affirmed.

AFFIRMED.

J. C Robinson, for plaintiff in error.

Clarence A. Davis, Attorney General, George W. Ayres, J. B. Barnes and Ralph P. Wilson, contra.

MORRISSEY C. J. SEDGWICK and ALDRICH, JJ., not sitting.

OPINION

MORRISSEY, C. J.

From a verdict of guilty of murder in the first degree and a sentence to imprisonment in the penitentiary for life, for the killing of Harold C. Crownover, defendant prosecutes error to this court.

The information is in three counts. The first makes the ordinary charge of murder. The second alleges that the murder was committed while defendant was engaged in the perpetration of or attempt to perpetrate, the burglary of a storehouse owned by one Ankeny, and the third is like unto the second, except that the storehouse alleged to have been burglarized was owned by one Hoile.

In the night season, June 14, 1918, burglars were discovered in one of the store buildings mentioned in the information, in the city of Laurel. The city marshal and other citizens were notified and steps were taken to apprehend the burglars. The latter escaped from the building, made their way to an automobile which they had left in the city park, and drove rapidly out of the city, pursued by the city marshal and four citizens who had undertaken to assist in effecting a capture of the burglars. After the burglars had driven something less than a mile, closely followed by the car in which the marshal and his party were riding, they turned slightly to one side of the road and stopped. The pursuers drove up and stopped their car within a few feet of the car occupied by the burglars. The marshal gave an order to halt, whereupon the burglars opened fire on him and his party. Harold C. Crownover was shot through the head and died almost instantly. Dr. Sackett, the driver of the car, was mortally wounded, and another member of the party was shot through the arm. The burglars made their escape, for the time being, but were subsequently apprehended, both being found wounded. The evidence is amply sufficient to show that defendant was one of the party engaged in the battle with the marshal.

Defendant filed a motion to quash, alleging that the information varied materially from the original complaint on which preliminary hearing was had. The motion was overruled, and this ruling is assigned as error. The only change or addition alleged to be made in the information consists of the following words: "Him, the said Harold C. Crownover." Defendant does not undertake to show wherein the addition of these words worked to his prejudice, or changed in any way the substance of the crime charged. If omitted the information would still be sufficiently explicit to charge the crime. The addition is wholly immaterial, and the ruling of the court was not prejudicial.

Instruction No. 11, given by the court on its own motion, is based on the theory that the shooting occurred while defendant was engaged in the perpetration of, or attempt to perpetrate, a burglary. It is argued that this is unsupported by the evidence because, it is said, even if it were admitted that defendant was one of the parties who had burglarized the store buildings, the burglary was completed before the shooting occurred, and defendant "had got nearly a mile away from the scene of the burglaries." Defendant cites Hayward v. State, 97 Neb. 9, 149 N.W. 105, and insists that the crime of burglary is complete whenever there is a wilful, malicious, and forcible entry of a storehouse, with intent to steal property of any value, or to commit a felony. This may be true; such acts alone may be sufficient to constitute a burglary; but it does not follow that, if the breaking and entering are complete and the burglar then attempts to make an escape from the scene of the crime, while pursued by officers of the law, and, in the...