Holthus v. State

• Decision Date: 07 June 1940
• Docket Number: 30736.
• Parties: HOLTHUS v. STATE.
• Court: Nebraska Supreme Court

292 N.W. 603

138 Neb. 200

HOLTHUS v. STATE.

No. 30736.

Supreme Court of Nebraska.

June 7, 1940

Syllabus by the Court.

1. In laying a foundation in a criminal case for the admission of a confession in evidence, it is sufficient to establish affirmatively all that occurred immediately prior to and at the time of making the confession, provided such affirmative proof shows it to have been freely and voluntarily made and excludes the hypothesis of improper inducements or threats.

2. In prosecutions for larceny, nonconsent of the owner of the property alleged to have been stolen may, in a proper case be inferred from circumstances, the same as any other essential fact.

3. It is not necessary under the law of this state to first warn a prisoner under arrest that any statements he may make may be used against him as a condition precedent to proving inculpatory statements made by him.

Error to District Court, Pawnee County; Falloon, Judge.

Paul Holthus was convicted of cattle stealing, and he brings error.

Judgment affirmed.

Kenneth S. Wherry, of Pawnee City, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

Plaintiff in error, hereafter referred to as the defendant, was convicted of the crime of cattle stealing, and sentenced to serve from three to five years in the state reformatory.

The record shows that on November 22, 1938, one Addie Hull purchased some cattle at Fairbury, Nebraska, which were transported to Pawnee City, Nebraska, by trucks during the night of the same day. The cattle were unloaded at the Fink stockyards shortly after midnight. On the following morning four of the cattle were missing. They were described as a whitefaced cow, weight 1,165 pounds; a whitefaced polled heifer, weight 845 pounds; and two small red steers, weighing 1,586 pounds. It was subsequently dis covered that four head of cattle of approximately the same description and weight were sold to the Lincoln Packing Company in Lincoln, Nebraska, on November 23, 1938, by one Keith Avery. Checks were given to Keith Avery for the cattle in the total sum of $177.24, which were cashed the same day at the Continental National Bank in Lincoln. The state called Keith Avery as a witness, and he promptly claimed immunity from testifying on the ground that he might incriminate himself in so doing.

The record shows that after Addie Hull unloaded the cattle which he himself had hauled from Fairbury, he went to a restaurant, and there at about 2 a. m. saw defendant in company with Keith Avery and one Virgil Ireland. Defendant's empty truck was parked in front of the restaurant.

The record shows that the sheriff of Pawnee county requested the sheriff of Johnson county to take the defendant into custody, and in response to that request Edgar Mahoney, sheriff of Johnson county, on November 29, 1938, called defendant on the phone and asked him to come to Tecumseh. Defendant and his wife thereupon went to the sheriff's home in Tecumseh, at which time the sheriff walked out to the car and said: " Paul, you are in trouble, aren't you?" The sheriff says he answered: " Yes; " while the defendant and his wife testify that no reply was made. Defendant was thereupon taken to the courthouse, where a statement was made in which he confessed his guilt. Much of the record is taken up with testimony as to the admissibility of this confession in evidence.

When the confession was made it appears that, in addition to the defendant and his wife, there were present Edgar Mahoney sheriff of Johnson county; M. J. Donahue, sheriff of Pawnee county; Raymond B. Morrissey, county attorney of Johnson county; and Esther Wolford, stenographer in the county attorney's office. The questions were asked by Morrissey. The questions and answers were taken in shorthand and transcribed by Esther Wolford. The manner of taking the confession was minutely gone into by both the state and the defendant. The record is absolutely devoid of any evidence of any unlawful inducement or...