Lamb v. State

• Citation: 95 N.W. 1050,69 Neb. 212
• Decision Date: 03 June 1903
• Docket Number: 12,827
• Parties: MICHAEL LAMB v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

95 N.W. 1050

69 Neb. 212

MICHAEL LAMB v. STATE OF NEBRASKA

No. 12,827

Supreme Court of Nebraska

June 3, 1903

ERROR to the district court for Greeley county: JOHN R. THOMPSON DISTRICT JUDGE. Affirmed.

AFFIRMED.

Thomas J. Doyle, George W. Berge, H. C. Vail and John M. Ragan, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, contra.

OPINION

SULLIVAN, C. J.

Michael Lamb, a Greeley county farmer, was informed against under section 1 of the criminal code which is in part as follows:

"If any person shall aid, abet or procure any other person to commit any felony, every person so offending shall, upon conviction thereof, be imprisoned in the penitentiary for any time between the respective periods for which the principal offenders could be imprisoned for the principal offense."

The trial resulted in a conviction. The sentence imposed is imprisonment in the penitentiary for a term of nine years. On account of the severity of the punishment, and because counsel for defendant seem to be deeply penetrated by the conviction that the jury who found their client guilty was touched and swayed by a hostile public sentiment, we have gone over the entire record with the utmost care.

One's first impression after reading the bill of exceptions is that the conclusion reached by the jury was the only one possible and this impression is not in the least weakened by reflection or by counsel's analysis of the evidence. If Lamb is not guilty, he is the victim of a most extraordinary combination of circumstances. The errors assigned are too numerous to be separately noticed in this opinion. They are for the most part, without color or semblance of merit. The main facts which the evidence adduced by the state establishes or tends to prove are briefly these:

On the morning of April 23, 1902, two bunches of fat cattle from Greeley county were moving on converging lines toward Cedar Rapids, a shipping station on the Union Pacific road in Boone county. One bunch, consisting of ten head of steers, was in charge of Harry Hill and Verne Stewart. These cattle belonged to the firm of Rooney & Company and had been stolen the night before. The other bunch, consisting of cows, heifers and steers, was owned by the defendant and under his personal control. Hill and Stewart were first to arrive at Cedar Rapids. They put the stolen cattle in the shipping yard and then rode back in the direction from which the defendant was coming. A short distance from town they found him with his cattle loitering by the roadside. They stopped, dismounted and talked with Lamb for a few minutes and then separated. Stewart went toward the Lamb farm and Hill turned back and helped drive the cattle to Cedar Rapids where they were put into the shipping yard with the stolen steers. Afterwards, on the same day, the two bunches, making just a car-load, were consigned to a South Omaha commission firm, by whom they were sold. Lamb accompanied the cattle to South Omaha and received from the consignee the entire proceeds of the sale. Hill, on the afternoon of April 23, was seen leaving Cedar Rapids riding his own horse and leading the defendant's. Hill worked for Lamb in 1891, and both he and Stewart were at the Lamb residence less than a week before the Rooney cattle were stolen. One of the witnesses for the state who met Lamb on the road to Cedar Rapids suggested to him that he did not have enough cattle to make a car-load. To this suggestion Lamb replied that he intended to buy a few more after he got to town. The hypothesis of the state was that defendant incited and instigated Hill and Stewart to steal the ten head of steers from Rooney & Company, and that the meeting at Cedar Rapids and the shipment and sale of the cattle came about, not by accident, but in accordance with a carefully prearranged plan. The theory of the defense was that Lamb drove twenty-five head of cattle from his farm to Cedar Rapids on the morning of April 23, and that all the cattle shipped by him to South Omaha on that day were his. He did not himself testify in support of this theory, but he produced several witnesses who gave evidence tending to sustain it. Hill was present at the trial, but did not testify. That Hill and Stewart stole the steers in question and drove them to Cedar Rapids is indisputably established. And in view of the inculpatory circumstances already mentioned, and others of less importance to which no reference has been made, it is, in our opinion, morally certain that what the defendant and Hill and Stewart did on April 23 was preconcerted; that every act, including the theft of the cattle, was an act done in the execution of a common design. The law of the case is very plain. If the cattle were stolen as alleged, and if Lamb was an accessory before the fact, that is, if by his command, request, advice or suggestion the crime was committed when he was neither actually nor constructively present, he was an aider, abetter or procurer within the meaning of the statute above quoted. Walrath v. State, 8 Neb. 80; Hill v. State, 42 Neb. 503, 60 N.W. 916; Dixon v. State, 46 Neb. 298, 64 N.W. 961; Casey v. State, 49 Neb. 403, 68 N.W. 643."

We will now notice specifically the points most strongly urged in support of the claim that the conviction was the result of errors committed by the district court at and before the trial. The demurrer to the information was, in our judgment, rightly overruled. The facts pleaded constitute a crime. Cattle stealing has been a felony since 1895; and section 1 of the criminal code in plain terms declares that any person who procures another to commit a felony shall be punished by imprisonment in the penitentiary. The theory of counsel for defendant, that this section, which was adopted in 1873, has no reference to acts made felonies by subsequent legislation, has no foundation in the language of the section, nor in reason, judicial decisions or legal analogy. The offense is charged in the usual manner; approved forms were closely followed, and it can not be said that the defendant was not fairly apprised of the criminal conduct imputed to him in the information. Maxwell, Criminal Procedure, 497; 9 Ency. Forms, 739; Wharton, Criminal Law (8th ed.), sec. 221; Commonwealth v. Adams, 127 Mass. 15.

The motion to quash the special panel because it was not composed of men whose names had been selected by the county board was properly overruled. Before the information was filed, the law cases for the April term had been disposed of and the regular jury had been discharged. It was, therefore, entirely proper for the court to proceed under the authority conferred by section 664 of the code. Carrall v. State, 53 Neb. 431, 73 N.W. 939; Dinsmore v. State, 61 Neb. 418, 85 N.W. 445.

In the sixth paragraph of the court's charge, it is said that proof beyond a reasonable doubt of every material fact alleged in the information is essential to a conviction. This instruction is assailed, but we think it is neither positively nor negatively bad. It embodies a correct proposition of law; it is good as far as it goes; and it is adequately supplemented by other instructions in which there is a clear statement of the facts which the state was required to prove. There seems to be no reason at all for supposing that the jury misconceived the issue.

The action of the court in giving and refusing instructions on the subject of circumstantial evidence is approved. The propositions given were: (1) that circumstantial evidence, to warrant a conviction, must be of such a character as to exclude every reasonable hypothesis excepting only the one implying defendant's guilt; (2) that every incriminating circumstance which the jury are authorized to consider as evidence of guilt must be established to a moral certainty, or beyond a reasonable doubt. These are correct statements of the law (Davis v. State, 51 Neb. 301, 70 N.W. 984;...