Lawhead v. State

• Decision Date: 09 January 1896
• Citation: 65 N.W. 779,46 Neb. 607
• Parties: LAWHEAD v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 607

65 N.W. 779

LAWHEAD

v.STATE.

Supreme Court of Nebraska.

Jan. 9, 1896.

Syllabus by the Court.

1. Different criminal acts, constituting parts of the same transaction, such as burglary with intent to steal particular property and the stealing of such property, may be charged in the same indictment or count thereof. Aiken v. State, 59 N. W. 888, 41 Neb. 263.

2. It is not error, in a prosecution for larceny, to charge that “the proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordinary prudent men with a conviction upon which they would act in their own most important affairs or concerns of life.” Polin v. State, 16 N. W. 898, 14 Neb. 540;Willis v. State, 61 N. W. 254, 43 Neb. 102.

3. Where the jury have been fully advised respecting the distinction between grand larceny and petit larceny, it is not error for the trial court to add that they have nothing to do with the question of the penalty, and that it is their duty to render a verdict in accordance with the evidence, without regard to its effect upon the accused. Ford v. State, 64 N. W. 1082, 46 Neb. 390.

4. Certain instructions held properly refused, the propositions therein embraced having been given by the court on its own motion in language quite as favorable to the accused.

5. Evidence examined, and held to sustain the conviction of the charge of larceny.

Error to district court, Buffalo county; Sinclair, Judge.

Orma Lawhead was convicted of larceny, and brings error. Affirmed.F. G. Hamer and Greene & Hostetler, for plaintiff in error.

A. S. Churchill, Atty. Gen., and Geo. A. Day, Dep. Atty. Gen., for the State.

POST, C. J.

The plaintiff in error was by the district court for Buffalo county adjudged guilty of grand larceny, and sentenced to a term in the penitentiary, which judgment he now seeks to have reversed by means of a petition in error addressed to this court.

The first proposition to which we will give attention is that the verdict is contrary to law, for the reason that the indictment includes in the same count a charge of burglary as well as of larceny. The charge is in the usual form, and concludes as follows: “Then and there being found in said barn, feloniously and burglariously did steal, take, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska.” It is said by counsel that: “The stealing that is here charged is a burglarious stealing. * * * If the answer be that he is charged with both burglary and theft, I reply that he cannot be so charged in the same count, and that the indictment is bad for duplicity.” To that proposition we cannot give our assent. It is, on the contrary, firmly established by authority that burglary and larceny, where each constitutes part of the same transaction, may be charged in the same count, and the defendant may be found guilty of larceny only. Aiken v. State, 41 Neb. 263, 59 N. W. 888, and authorities cited.

2. It is next alleged that the court erred in giving the following instruction on its own motion: “The court instructs you that by a reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means an actual doubt having some reason for its basis. A reasonable doubt that entitles to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case. The proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordinary prudent men with a conviction on which they would act in their own most important concerns and affairs of life.” The specific objection to the foregoing instruction as made in the motion for a new trial is to the last sentence or paragraph thereof. That portion of the instruction to which the criticism is directed is a substantial copy of the charge approved by this court in Polin v. State, 14 Neb. 540, 16 N. W. 898;Langford v. State, 32 Neb. 782, 49 N. W. 766; and Willis v. State, 43 Neb. 102, 61 N. W. 254. The use of the qualifying word “ordinary” instead of “ordinarily,” as in the instruction approved, is probably the result of an error in transcribing. But, however that may be, the variance is unimportant, and presents a question of grammatical construction, rather than a question of law.

3. During the deliberation of the jury the following proceedings were had, as disclosed by the record: “Question by Jury: What is the difference in punishment between grand larceny and petit larceny? Answer by the Court: Grand larceny is where the property stolen is of the value of $35 or upwards, and punishable by confinement in the penitentiary not less than one year and not more than seven years. Petit larceny is where the property stolen is of the value of less than $35, and is punishable by imprisonment in the county jail not exceeding thirty days, and, in addition, may be fined $100, and also to make restitution to the owner of the property stolen in double its value. The court desires to add that it answers these questions in the hope that it may help your investigations, but...