George v. State

• Citation: 59 Neb. 163,80 N.W. 486
• Parties: GEORGE v. STATE.
• Decision Date: 18 October 1899
• Court: Supreme Court of Nebraska

59 Neb. 163

80 N.W. 486

GEORGE

v.STATE.

Supreme Court of Nebraska.

Oct. 18, 1899.

Syllabus by the Court.

1. The crimes of stealing cattle and of receiving stolen cattle, described in section 117a of the Criminal Code, are separate and distinct offenses.

2. Where an information, in different counts, charges separate and distinct crimes, and the accused, on the trial, is acquitted on a count charging one crime, but is convicted on a count charging another crime, he cannot, on a new trial being granted, be tried for the offense of which he was acquitted at the former trial.

3. In such case, the new trial can be granted only on the count upon which a conviction was had on the former trial.

4. Where a crime consisting of several degrees is charged in different counts of an information, the allowance of a new trial goes to the whole case.

5. In a criminal case, but one issue can be properly before the court at one time.

6. It is unnecessary to plead facts of which the court will take judicial notice.

7. A plea in bar may be disregarded, if presented while the plea of not guilty remains on the record.

8. A plea in bar need not be interposed to call to the attention of the court matters of record which show that the accused was duly acquitted in the same court, in the same case, of the identical charge upon which it is proposed to try him again.

9. Whether a defendant is authorized to withdraw a plea of not guilty after the issue raised by it has been, in the orderly course of procedure, unalterably adjudicated, quære.

10. Where a court entertains and considers the merits of a plea in bar, without a formal withdrawal of the plea of not guilty, it is, at most, a mere irregularity, and the action of the court thereon may be the subject of review.

11. In such case, the plea of not guilty will be considered as constructively withdrawn.

Error to district court, Cherry county; Kinkaid, Judge.

Edmon George was convicted of larceny, and brings error. Reversed.

John M. Tucker and Wolfenbarger & Williams, for plaintiff in error.

C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State.

SULLIVAN, J.

The first count of the information charges the defendant, Edmon George, with the larceny of certain cattle. In the second count it is alleged that he received the same cattle knowing that they had been stolen, and with the intent of defrauding the owner. A jury impaneled to try the issues raised by a general plea of not guilty returned a verdict of conviction on the second count, and made no express finding as to the accusation contained in the first count. The court received the verdict, discharged the jury, and sentenced the defendant to imprisonment in the penitentiary for a term of years. He thereupon prosecuted error to this court, and secured a reversal of the judgment. The cause was remanded for further proceedings, and the defendant, having been again put upon trial, was found guilty and sentenced on the first count of the information.

The principal question now before us for decision is the legal effect of the first verdict. Counsel for George insist that it was, in contemplation of law, an acquittal of the charge of larceny, and that the judgment under review is therefore erroneous. We think counsel are right. We think the defendant has been sentenced for a crime of which he has been once, in a regular judicial proceeding, declared by the verdict of a jury to be innocent. The prosecution was based on section 117a of the Criminal Code, which is as follows: “If any person shall steal any cow, steer, bull, or calf, of any value, or if any person shall receive or buy any cow, steer, bull, or calf, that shall have been stolen, knowing the same to have been stolen, with intent by such securing or buying to defraud the owner, or if any person shall conceal any such thief, knowing him to be such, or if any person shall conceal any cow, steer, bull, or calf, knowing the same to have been stolen, every such person so offending shall be imprisoned in the penitentiary not more than ten years nor less than one year, and shall pay the costs of prosecution.” That the violations of this section charged in the two counts of the information are distinct crimes is, of course, self-evident. Neither offense comprehends the essential elements of the other. They are, according to the plain meaning of the law, separate and distinct transactions. A person who is guilty of larceny under the above section cannot also be guilty of receiving the stolen property. He cannot be the receiver and the thief. The defendant was accused in the information of two substantive crimes. He was put on trial, and convicted of one, and, by implication, acquitted of the other; and he is now as much entitled to the benefit of the verdict in his...