Goldsberry v. State

• Decision Date: 19 November 1902
• Citation: 66 Neb. 312,92 N.W. 906
• Parties: GOLDSBERRY ET AL. v. STATE.
• Court: Nebraska Supreme Court

66 Neb. 312

92 N.W. 906

GOLDSBERRY ET AL.

v.STATE.

Supreme Court of Nebraska.

Nov. 19, 1902.

Syllabus by the Court.

1. A motion for a change of venue in a criminal prosecution is addressed to the sound discretion of the trial court, and, unless there has been an abuse thereof, its ruling on the motion cannot be disturbed.

2. If, from the showing made in support of and against the motion for a change of venue in a criminal case, there is no reasonable ground shown on which to found a belief that the accused cannot have a fair and impartial trial in the county where the offense is alleged to have been committed, it is not error to deny such motion.

3. Held, in the case at bar, the order of the trial court overruling a motion for a change of venue is without error.

4. Where defendants are accused of buying and receiving stolen property, knowing it to be stolen, with intent to defraud the owners thereof, it is competent for the prosecution to offer testimony of other alleged receivings of stolen property, closely related in time, from one of the parties connected with the delivery in the principal offense charged, for the purpose of proving scienter.

5. Where the facts and circumstances surrounding the collateral offenses are related to and so connected with the principal offense charged as to logically warrant the inference of guilty knowledge in receipt of the property charged in the information, evidence of the collateral offenses is competent and material, even though the person from whom the property was received in the collateral transactions was not the only one concerned in the delivery of the property constituting the principal offense charged.

6. Held, in the case at bar, as disclosed by the record, the testimony relating to the other alleged receivings of stolen property from one White, a witness offered by the state, was properly admissible in evidence for the purpose of proving guilty knowledge in respect of the principal offense for which defendants were tried.

7. The fact that the prosecution offered direct evidence to prove guilty knowledge as to the offense charged does not preclude the state from also offering testimony of collateral offenses closely related in time and circumstances, for the same purpose.

8. Where an accused is on trial for buying and receiving stolen property, knowing it to be such, it is competent to offer testimony of other alleged receivings of stolen property from the same person concerned in the delivery in the principal offense charged, both prior and subsequent to the time of the offense as laid in the information, where such collateral transactions are closely related thereto in time.

9. Where a witness testified as to collateral transactions in which stolen property was alleged to have been delivered the accused, held, that testimony incidentally given as to the larceny of other property not delivered to the accused was not erroneously admitted.

10. Nor does the fact that such witness has entered into details of the several transactions, whereby he claimed to have delivered stolen property to the defendants at other times than the one for which they were being tried, render the admission of such testimony erroneous.

11. Where evidence of collateral offenses is admitted for the purpose of showing guilty knowledge in receiving stolen property, an instruction is not erroneous because it omits to instruct the jury that the receipt of stolen property in the collateral transactions must have been with knowledge that it was stolen property.

12. An intent to defraud is an essential element of the crime of receiving stolen property.

13. It is error for the court to instruct the jury that they may convict the defendant without finding a specific fact which constitutes one of the essential ingredients of the offense charged.

14. In the trial of an information charging a felony, the presiding judge is without lawful authority to determine the issue, or any of the questions of fact involved in the issue. That power belongs exclusively to the jury, regardless of the state of the evidence. They must be fully satisfied of the existence of every fact constituting an element of the crime charged, and it cannot be assumed that they are so satisfied because they ought to be.

15. The law does not presume the existence of a fraudulent intent from the fact that a party received stolen property with knowledge of the theft.

16. A variance between a descriptive averment of the information and the evidence given in support thereof is not fatal, unless such variance is material to the merits of the case or prejudicial to the defendant.

Error to district court, Nemaha county; Jessen, Judge.

Lemuel T. Goldsberry and others were convicted of receiving stolen property, and bring error. Reversed.

Kelligar & Ferneau and H. A. Lambert, for plaintiffs in error.

Frank N. Prout, Atty. Gen., Norris Brown, Dep. Atty. Gen., William B. Rose, Asst. Atty. Gen., and E. B. Quackenbush, Co. Atty., for the State.

SULLIVAN, C. J.

Three defendants were informed against jointly for receiving stolen horses; the charge being that four certain horses and one mule (describing the same) were stolen in the state of Missouri, in Lafayette county, from different owners, and on or about the 20th of November, A. D. 1900, delivered to and received by the defendants in Nemaha county, this state; they knowing such property to have been stolen, and with the intention on their part of defrauding the respective owners thereof. A plea of not guilty was entered, and after trial a verdict of guilty was returned against all three defendants, on which they were by the court sentenced to imprisonment in the penitentiary for ten, four, and two years, respectively. They bring the case here for review by proceedings in error.

Immediately preceding the trial a motion for a change of venue from Nemaha county was filed, giving as reasons therefor that there existed among the people of said county a general belief that the defendants were guilty, that there was a strong bias and prejudice against the defendants among the people in said county, and that a fair, impartial, and unprejudiced jury could not be obtained, all of which would prevent them from having a fair and impartial trial. To support the motion for a change of venue, affidavits, subscribed by different persons, to the number of 39 or 40, were filed in the cause. These affidavits, in the main, were made by citizens of the town of Auburn, the county seat of Nemaha county, or of the vicinity thereof, in which it is stated that throughout the county, and especially in and about Auburn, there existed a strong and general belief that the defendants were guilty of the crime charged against them, and because of such belief, and general bias and prejudice, the affiants believed it would be impossible to obtain a fair, impartial, and unprejudiced jury. It is also attempted to be made to appear that because of the activity of citizens generally, and the prejudice against the defendants, it was with great difficulty that they were enabled to procure bail bond, although amply able to indemnify their sureties, and that those who had gone bail for them had, because of the opposition and criticisms of the citizens, withdrawn their names as sureties on defendants' recognizances. There are also presented as a part of the showing for a change of venue copies of newspaper reports of the preliminary trial. The defendants themselves filed affidavits to the effect that exaggerated and false reports had been circulated concerning them, relative to the commission of many and divers crimes, and that they had been headquarters for a large gang of horse thieves operating in Kansas, Nebraska, and Missouri, and had handled hundreds of horses, knowing them to be stolen property, and were criminals of the most pronounced types, and guilty of all kinds of crime. Numerous other alleged facts, calculated to show that great prejudice existed against them, were narrated in such affidavits.In opposition to the showing made by the defense, the state offered affidavits, subscribed by 100 or more of the citizens from all parts of the county, in which it is stated that there has at no time existed any strong feeling, bias, or prejudice against either of the defendants, and, if any such feeling existed, it was confined to Auburn and vicinity, where the offense was alleged to have been committed. A careful reading of the affidavits for and against the request for a change of venue convinces us no error was committed in overruling the motion. When analyzed, the showing extends no further than to disclose that, at the preliminary hearing, evidence tending to establish the probability of guilt of the offense charged, and other offenses of a similar nature, to prove guilty knowledge, was of such a character as to excite more than ordinary comment and discussion by those cognizant of the trial, and of the character of the evidence produced by the state at such preliminary hearing. There is no showing which would indicate any undue excitement, passion, ill will, bias, or prejudice on the part of the citizens generally. The newspaper reports were only such as might reasonably be expected in the dissemination of news regarding the occurrence, and would not necessarily disqualify even those who had read the newspaper accounts of the preliminary hearing. The affidavits of the defendants as to the false rumors and exaggerated reports concerning their guilt of the offense charged, and of the commission of many other crimes, must be taken with a grain of allowance, in the face of the numerous affidavits of citizens throughout the country generally, showing that no public sentiment, ill feeling, or bias had been engendered as a result of the institution of criminal proceedings against them. In short, the showing in support of the application for a change of venue on the face appears formidable and as possessing some...