Holmes v. State

• Decision Date: 22 March 1899
• Citation: 78 N.W. 641,58 Neb. 297
• Parties: HOLMES v. STATE.
• Court: Nebraska Supreme Court

58 Neb. 297

78 N.W. 641

HOLMES

v.STATE.

Supreme Court of Nebraska.

March 22, 1899.

Syllabus by the Court.

1. A general verdict of guilty of the crime of larceny from the person, from which is omitted a statement of the value of the property alleged to have been stolen, is fatally defective.

2. A verdict which lacks a finding of an essential element of the crime charged will not support a sentence, and a judgment based thereon is void.

3. The question of the effectiveness of such a verdict will be examined and determined in an error proceeding to this court, although not of the assignments of the motion for a new trial.

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

Alice Holmes was convicted of larceny, and brings error. Reversed.Lee S. Estelle, for plaintiff in error.

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

HARRISON, C. J.

An information was filed in the district court of Douglas county, in which the plaintiff in error was charged with the statutory crime of larceny from the person. The amount alleged to have been so stolen was stated as follows: “Forty-five dollars in money, of the value of forty-five dollars.” The accused, who had been arrested, was arraigned, entered a plea of not guilty, and was placed on trial. The trial jury returned a verdict of guilty, which was, in terms, as follows: “We, the jury duly impaneled and sworn to well and truly try, and true deliverance make, between the state of Nebraska and Alice Holmes, the prisoner at the bar, do find the said defendant guilty of larceny from the person, as she stands charged in the information.” Sentence was pronounced against the accused of confinement in the penitentiary for a designated term.

It is urged, in an error proceeding to this court, that the verdict was insufficient, in that it was general, and did not find the value of the property or thing stolen, and, being so defective, furnished no basis for a judgment or sentence. The section of the Criminal Code under which the prosecution was instituted reads as follows: “Every person who steals property of any value by taking the same from the person of another without putting said person in fear by threats or the use of force and violence, shall be deemed guilty of grand larceny, and shall, upon conviction thereof, be punished by confinement in the penitentiary for not less than one nor more than seven years.” Comp. St. 1897, p. 1354; Cr. Code, § 113a. The section of the Criminal Code the provision of which it is asserted was governable, and under which the verdict herein was clearly insufficient, is worded as follows: “When the indictment charges an offense against the property of another by larceny, embezzlement, or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict the value of the property stolen, embezzled, or falsely obtained.” Comp. St. 1897, p. 1434; Cr. Code, § 488. We are satisfied, after an examination of the subject, that the section just quoted is applicable to all larcenies, and the crime charged in the information in the case at bar was a larceny. The verdict lacked one essential element, and without it could not support a judgment. The trial court could not impose the sentence which was adjudged, and such judgment was without force or void. 1 Bish. Cr. Proc. § 1005; In re McVey, 50 Neb. 481, 70 N. W. 51. Section 488 of the Criminal Code, under consideration, was evidently copied literally from the Code of Ohio. It is an exact reproduction of the 167th section of said Code. In the case of Armstrong v. State, 21 Ohio St. 357, there was a trial of the accused on a charge in one count of the indictment of stealing a horse of an alleged value, and a second count for receiving a stolen horse of the same alleged value. There was a conviction, the verdict being a general one, and without any finding of the value of the property. In an error proceeding to the supreme court, it was stated in the opinion rendered, after quoting the 167th section of the Criminal Code, that “the Code now in force on this subject is peremptory. The only question is whether it applies to the offense of horse stealing, under the 27th section of the crimes act (Swan & C. St. 412), which makes it a penitentiary offense, whatever may be the value of the animal stolen. In all cases of larceny under other sections of the statute (Swan & C. St. 408, 439), there is an obvious reason for requiring the jury, on conviction, to return in their verdict the value of the property stolen; for that is what determines the grade of the...