Junod v. State

• Citation: 73 Neb. 208,102 N.W. 462
• Parties: JUNOD ET AL. v. STATE.
• Decision Date: 09 February 1905
• Court: Supreme Court of Nebraska

73 Neb. 208

102 N.W. 462

JUNOD ET AL.

v.STATE.

Supreme Court of Nebraska.

Feb. 9, 1905.

Syllabus by the Court.

1. Evidence examined, and found to be sufficient to connect the accused persons with the commission of the crime charged against them, and to sustain the verdict and judgment of the district court.

2. Wire fastened to posts for the purpose of fencing a part of the public domain, for temporary use as a summer pasture for live stock, is personal property; and one who cuts or tears it from the posts and carries it away with larcenous intent, without the consent of the owner, may be convicted of larceny.

3. Instruction defining a reasonable doubt identical in form and substance with the one criticised in Mays v. State (Neb.) 101 N. W. 979, is not approved, but we cannot reverse the judgment solely because it was given.

4. Error cannot be predicated on a single sentence or clause of the court's instructions. If, when read in full, and considered together as a whole, they state the law applicable to the case correctly, and are not prejudicial to the rights of the accused, such assignments of error will be disregarded.

5. A sentence of five years in the State Penitentiary for stealing property of the value of $40, under the circumstances disclosed by the record in this case, is excessive, and for that reason is reduced to two years and six months; and the judgment of the district court, as thus modified, is affirmed.

Error to District Court, Cherry County; Harrington, Judge.

John Junod and Harry Junod were convicted of grand larceny, and bring error. Affirmed.E. D. Clark and Hainer & Hainer, for plaintiff in error.

Norris Brown and W. T. Thompson, for the State.

BARNES, J.

An information was filed in the district court of Cherry county during the November, 1902, term thereof, against John Junod, Harry Junod, and Thomas J. Nelson, charging them with the crime of grand larceny. After a plea of not guilty, Nelson demanded a separate trial; and the Junods making no such demand, were tried together, and found guilty as charged in the information. The value of the property stolen was fixed by the verdict of the jury at $40. From a sentence of five years each in the penitentiary, they bring the case here by a petition in error.

The property stolen was a quantity of wire owned by one David A. Hancock, and the evidence shows that it was taken from a fence which inclosed a pasture situated on the public domain, which Hancock used as a summer pasture for his stock. The plaintiffs herein contend, first, that the evidence is not sufficient to sustain the verdict, because it does not connect them with the commission of the crime. The record discloses that the stolen wire was found in their possession; that it was pointed out to the owner by Harry Junod, and the place where it was joined on to other wire, thus making a fence which inclosed his pasture, was designated by him. When asked how he came by the wire, he stated to Hancock, and the officers and other persons present, that he bought it from a man, whose name and place of residence he refused to disclose. When John Junod was arrested he claimed to have purchased the wire from one Bowers, and said he gave it to his brother Harry. Bowers was produced as a witness for the state, and testified that he never saw the wire in question, and never sold it to John Junod or any other person. Other incriminating facts and circumstances were shown, which seem to clearly establish the fact that the plaintiffs were the identical persons who stole the wire, and so we conclude that the verdict is amply sustained by the evidence.

Plaintiffs' second contention, and the one on which they lay the most stress, is that the property in question was a fixture to real estate, and for that reason was not the subject of larceny. It was described in the information as follows: “Ten thousand pounds of wire, of the value of $300, the personal property of David A. Hancock.” The evidence in support of the charge discloses that one Anderson was the owner of a ranch in Cherry county, Neb., consisting of what was called the “Dewey Lake Ranch and the Niobrara Pasture”; that on the 27th day of July, 1901, he sold the property to the prosecuting witness, David A. Hancock. The Niobrara pasture appears to have been a tract of government land inclosed by a temporary post and wire fence constructed by Anderson, and for which he gave Hancock a bill of sale when he conveyed the other ranch property to him. The evidence shows that the wire in question was torn or cut from the posts surrounding the pasture above described, was wound up on homemade spools, and then hauled away in wagons to the premises of Harry Junod, where it was afterwards found and identified. It is true that the old common-law rule with respect to the crime of larceny was that where the article taken was, in fact and law, a fixture to real estate, to constitute that crime the severance and asportation must be separate and distinct acts. Authorities...