Lamb v. State

• Decision Date: 02 May 1894
• Citation: 40 Neb. 312,58 N.W. 963
• Parties: LAMB v. STATE.
• Court: Nebraska Supreme Court

40 Neb. 312

58 N.W. 963

LAMB

v.STATE.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. The admission of incompetent testimony to prove a fact is harmless error, where such fact is established by other sufficient uncontradicted evidence.

2. To constitute a larceny of an estray converted to his own use by the finder, the felonious intent to misappropriate must have existed at the time of the taking of the estray into his possession.

3. Where the felonious intent is formed after the possession of the animal is acquired, the finder is not guilty of larceny, although he subsequently appropriates the property to his own use.

4. In a prosecution for larceny of a stray animal, it is not necessary to the conviction of the accused that at the time of taking the property he should have known, or have had reason to believe, who was the owner thereof.

5. It is not error to refuse an instruction to the effect that a person accused of a crime cannot be convicted upon the uncorroborated testimony of an accomplice. The weight to be given the testimony of such a witness is for the jury to determine, after a careful examination of the same, in the light of all the other evidence in the case.

6. A conviction may rest on the uncorroborated evidence of an accomplice, when, considered with all the testimony, it satisfies the jury, beyond a reasonable doubt, of the guilt of the accused.

Error to district court, Boone county; Harrison, Judge.

Michael Lamb was convicted of larceny, and brings error. Affirmed.W. F. Critchfield and M. B. Gearon, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

NORVAL, C. J.

The plaintiff in error, Michael Lamb, was accused, by information filed by the county attorney in the district court, of the crime of grand larceny, committed by feloniously stealing and carrying away “one black registered sow, with white points, with niche in left ear, named Black Queen, register number 13,770S,” of the value of $75, of the personal property of one J. C. Hardman. The accused was convicted, and the value of the sow was fixed by the verdict at $25.

On the trial the state was permitted to introduce in evidence, over the objection and exception of the defendant, a certificate of the registration of the pedigree of the sow in question, which certificate purported to be signed by Ira K. Alderman, as secretary of the Standard Poland China Record Association, of Marysville, Mo., and authenticated with the seal of said association. The admission in evidence of this paper or document is urged as a reason for a reversal of the case. It would have been better had the county attorney not inserted in the information the allegation as to the registration of the animal, as such averment was not essential to the validity of the information. Had it been omitted, the state would not have been called upon to prove the pedigree of the sow, but, having alleged the same, it became a part of the description of the property, and therefore it was incumbent on the prosecution to establish it, by competent evidence, substantially as averred. That the certificate introduced was incompetent to prove the fact of registration, it requires no argument to show. We have been cited to no case which holds such a certificate is admissible, and we do not believe any such can be found. But the accused was not prejudiced by the ruling, since it had already been established by other proof that the sow was a thoroughbred Poland China, and that she was a duly registered animal, and no testimony was introduced or offered by the defendant to dispute that fact. The evidence objected to was merely cumulative upon a question upon which no additional proof was required, and the admission thereof was therefore harmless error.

Another reason for reversal is that the evidence fails to sustain the charge of larceny. The testimony on the part of the state tended to establish the following facts: The complaining witness, J. C. Hardman, and the defendant were neighbors, their farms being less than a mile apart. The sow in controversy was owned by Hardman, and had either escaped from his pasture, or had been let out. Afterwards, on a Sunday in September, 1891, the sow came to the premises of the defendant; and, during his absence from home, R. L. Nickerson and William Collins, employes of the defendant, and who resided with him at the time, drove her into the defendant's hog lot, where she remained until his return home, that evening, when the defendant was informed what had been done. Although it was known to the defendant and the other parties that the animal belonged to Hardman, he was not informed that she was in defendant's possession, but was kept until Thursday night of the same week, when, about 11 o'clock, the defendant (Lamb), Nickerson, and Collins loaded her into defendant's wagon; and, with his team, she was taken by Collins and Nickerson to the farm owned by Collins' father, some four or five miles distant, where she was left until she was subsequently discovered, and claimed by her owner. It further appeared in evidence that the sow was taken to the Collins farm to prevent the owner from finding her, and that it was agreed between Lamb, Collins, and Nickerson, prior to the removal of the animal, that all should share in the proceeds whenever the same should be sold. The facts, of which the above is only a brief summary, were testified to positively by both Collins and Nickerson. There is in the bill of exceptions testimony of other witnesses for the state tending to connect the accused with the transaction. While it is also true that the defendant, when upon the witness stand, denied having anything to do with the loading of the sow, and her removal to the Collins farm, and he is to some extent corroborated by the testimony of one or more members of his family, we are convinced that the jury were warranted in returning the verdict they did. If the testimony of the witnesses for the state is true,--and of which fact the jurors, who heard the evidence and saw the witnesses, were the sole judges,--it establishes a conversion of the animal by the plaintiff in error.

It is contended that there is no evidence in the record tending to show an intent on the part of the accused to convert the property at the time it came into his possession, but, on the other hand, that the testimony in behalf of the state is to the effect that he had no such intention until long after he was advised that the sow was in his possession. If the record so disclosed, we concede that the contention would not be without merit, since the animal, when it came into possession of the plaintiff in error, was an estray. In order to constitute larceny of an estray converted by the finder to his own...