Kurpgeweit v. State
| Citation | 97 Neb. 713,151 N.W. 172 |
| Decision Date | 12 February 1915 |
| Docket Number | No. 18829.,18829. |
| Parties | KURPGEWEIT v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In a prosecution for cattle stealing, the jury may infer guilt from defendant's unexplained possession of the recently stolen animals.
In a prosecution for larceny, it is within the discretion of the trial court to permit the state to withdraw its rest and prove the ownership of the property as charged in the information.
In a criminal prosecution, an instruction that defendant is entitled to the presumption of innocence as a matter of evidence, and another instruction that the evidence is what is said by the witnesses on the stand, should be construed together, and, when thus considered, they are not inconsistent or erroneous.
In the appellate court a judgment will not be reversed unless error in the proceedings below is affirmatively shown by the record.
The refusal to give a requested instruction is not erroneous where its substance is properly given in a different form.
Error to District Court, Madison County; Welch, Judge.
Leopold Kurpgeweit was convicted of cattle stealing, and brings error. Affirmed.Willis E. Reed, of Madison, for plaintiff in error.
Grant G. Martin, Atty. Gen., for the State.
In a prosecution by the state in the district court for Madison county, Leopold Kurpgeweit was convicted of cattle stealing, and for that felony was sentenced to the penitentiary for a term of not more than ten years nor less than one year. As plaintiff in error, he now presents for review the record of his conviction.
[1] The first objection to the judgment is that the verdict is not sustained by the evidence. Defendant was accused of stealing seven cows and five heifers, the property of Herman Kurpgeweit, of the value of $500. There is proof tending to show that defendant and the owner of the cattle are brothers. Both are farmers, defendant living west of his brother. There is a quarter section of land between their possessions. Their houses and barns are north of a public highway running east and west. The stolen animals are described as red. They were horned cattle and were unbranded. During the evening of October 1, 1913, the cattle mentioned and a black cow were inclosed for the night in the corral of the owner on his premises. The next morning they were missing. The fence wires at the northeast corner of the owner's pasture had been cut. On the west side the conditions indicated that the posts had been pulled out; that the fence had been thrown on the ground; and that it had been put back in its place. Defendant made no inquiry or search, though he was promptly notified of the loss. He offered to loan a saddle to be used by the owner of the stock in making a search which might take him away from defendant's premises. The owner, public officers, and others made searches extending into several counties. The black cow returned alone, unharmed, October 5, 1913. The other missing animals were found in defendant's pasture October 10, 1913, and were there identified in presence of the sheriff. They had been recently dehorned, and bore the fresh marks of mutilation. Some of the tails had been cut. On one cow there had been an attempt to destroy an identifying mark. In the left ears of the animals the letter “L” had been rudely cut. They were grazing with some of defendant's red cattle, and the latter bore similar marks of fresh branding and of dehorning. Defendant claimed to be the owner of the stolen cattle after they were found in his pasture. He afterward gave as a reason for taking them that they were mortgaged, and that the mortgagee would be the loser, instead of his brother. In this summary there is no attempt to make findings or to recite facts or to mention any evidence on behalf of defendant. The purpose is to outline some of the proofs in support of the charge against accused, for the purpose of testing the sufficiency of the evidence to sustain the conviction. There is no direct testimony showing when or how the cattle got into defendant's pasture. Defendant adduced proof tending to show that, owing to the conditions of the weather and the pasture, live stock had a propensity to break out of inclosures, and that teamsters drove through gates across defendant's farm, but the jury did not draw from testimony of this character the inference that the missing cattle strayed or broke into defendant's pasture. Defendant and his wife and their son testified as witnesses, but there was no attempt on the part of any one to explain why cattle belonging to defendant and similarly colored cattle owned by his brother bore alike the fresh marks of branding and dehorning when found. The return of the black cow, which could not be disguised, is a suspicious circumstance. There is nothing in the record to make the testimony on behalf of the state unbelievable. The evidence will sustain a finding that a proper explanation of defendant's possession of the recently stolen cattle in the mutilated condition described was not given. In a recent case the law was stated thus:
“The unexplained...
To continue reading
Request your trial
-
State v. Putnam
...in criminal prosecutions the withdrawal of a rest in a trial on the merits is within the discretion of the trial court. Kurpgeweit v. State, 97 Neb. 713, 151 N.W. 172. The defendant contends that the admission in evidence of items of merchandise taken from his automobile were prejudicial er......