Liakas v. State

Decision Date28 October 1955
Docket NumberNo. 33733,33733
Citation72 N.W.2d 677,161 Neb. 130
PartiesDean LIAKAS, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
CourtNebraska Supreme Court

Syllabus by the Court.

1. Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute.

2. If the information or indictment apprises the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense, it meets the fundamental purposes of an information or indictment, as well as constitutional requirements.

3. Under section 28-532, R.R.S.1943, if the information for burglary sufficiently identifies the building allegedly entered, an allegation of ownership is not necessary in order that an offense under the statute be stated.

4. The statute providing that 'A witness may be interrogated as to his previous conviction for a felony' does not limit the inquiry to a single conviction or prevent a proper inquiry as to the number of his convictions.

5. If a person accused of crime testifies in his own behalf he is to be treated as any other witness.

6. Error cannot be predicated on the refusal of the court to give a tendered instruction, where the court on its own motion properly instructed the jury on the points covered by the instruction offered and refused.

7. Instructions are to be considered together to the end that they may be properly understood, and, when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated on the giving of the same.

8. The credibility of witnesses and the weight of their testimony are for the jury to determine in a criminal case, and the conclusion of the jury will not be disturbed unless it is clearly wrong.

9. Where the accused is identified as having been at or near the scene of a crime about the time of its commission, evidence showing that he owned, possessed, or had access to any tools with which the crime was or might have been committed is admissible to show that the accused had the means to commit the offense in the manner that it was committed. It is a circumstance which the jury may consider.

Eugene D. O'Sullivan, Eugene D. O'Sullivan, Jr., Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

In a prosecution by the State in the district court for Douglas County Dean Liakas was convicted of burglary, and for that felony was sentenced to serve a term of 8 years in the State Penitentiary. As plaintiff in error, defendant presents for review the record of his conviction. We hereafter refer to the plaintiff in error as defendant.

The first three assignments of error made by the defendant relate to the giving of instruction No. 9 by the trial court on its own motion, the contention being that by the giving of this instruction the defendant was denied due process of law under Article 1, section 3, of the Constitution of the State of Nebraska and section 1 of the Fourteenth Amendment to the Constitution of the United States.

The defendant also assigns as error that the possession and occupancy of a burglarized building must be proved as charged by evidence beyond a reasonable doubt, and failure to do so amounts to a denial of due process of law to the defendant as guaranteed to him under the Constitution of the State of Nebraska and the Constitution of the United States. The latter assignment of error will be discussed first, the first three assignments of error second, and other assignments of error as appear in the opinion.

The information, insofar as necessary to be considered here, charged: '* * * that on or about the 30th day of May * * * (1953) Dean Liakas * * * did willfully, maliciously, and forcibly, and with the intent to steal property of value, break and enter into a certain building located at 3552 Leavenworth Street, in the City of Omaha, in said county and state, which building is leased and occupied by Ben Perelman, Robert Perelman, and Harold Perelman, doing business as Ben Perelman Grocery, * * *.'

To charge a statutory offense, the information or complaint must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent. Dickens v. State, 139 Neb. 163, 296 N.W. 869; Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533, 169 A.L.R. 868.

Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute. Pandolfo v. State, 120 Neb. 616, 234 N.W. 483; Sedlacek v. State, supra.

If the information or indictment apprises the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense, it meets the fundamental purposes of an information or indictment, as well as constitutional requirements. Cowan v. State, 140 Neb. 837, 2 N.W.2d 111; Sedlacek v. State, supra.

Under section 28-532, R.R.S.1943, if the information for burglary sufficiently identifies the building allegedly entered, an allegation of ownership is not necessary in order that an offense under the statute be stated. Sedlack v. State, supra.

The specific ownership of a building involved in a crime of burglary is not an essential element of the offense. An allegation of the ownership as such is immaterial save for the purpose of identifying the property, where the crime allegedly was committed, as not the property of the accused and to show that the defendant had no right to enter the premises. See Sedlacek v. State, supra, and cases cited therein.

With reference to the evidence on this subject, the witness Ben Perelman testified that he and his son Robert run the business; that the business was located at 3552 Leavenworth Street, on the northwest corner of Thirty-fifth Avenue and Leavenworth Streets; that he occupied the whole building; and that there were things of value inside the store. In addition, this witness described the store as being 60 feet by 100 feet, with the east side facing Thirty-fifth Avenue and the west side facing a parking lot, and at the back there is an alley. He described the front or south part of the store, the nature of the construction, the glass and the entrance and other details relating to the premises. From a review of the evidence, the property is clearly identified, its occupancy and possession shown, and the disassociation of the right of the defendant to occupy the premises or to enter the premises at the time the alleged burglary was committed. This assignment of error cannot be sustained.

We next consider the first three assignments of error summarized above.

Section 25-1214, R.R.S.1943, provides: 'A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof.'

The defendant asserts that there is a difference between the defendant as a witness and an ordinary witness for the reason that he is more than a witness and is possessed of certain constitutional and statutory rights which the ordinary witness does not have. On cross-examination the defendant was asked if he had been previously convicted of a felony. He answered 'Yes, sir.' And to the question 'How many times?' he answered 'Three.' It is contended that the defendant was required to give evidence against himself which could be used in the proof of an habitual criminal charge.

In Brown v. State, 111 Neb. 486, 196 N.W. 926, 927, it is said that by statute, a person charged with crime shall, at his own request, but not otherwise, be deemed a competent witness. 'If he becomes a witness * * * he should be treated as any other witness. Heldt v. State, 20 Neb. 492, 30 N.W. 626; Comstock v. State, 14 Neb. 205, 15 N.W. 355 * * *.'

In Sulley v. State, 119 Neb. 783, 230 N.W. 846, the court held: 'The statute providing that 'a witness may be interrogated as to his previous conviction for a felony' does not limit the inquiry to a single conviction or prevent a proper inquiry as to the number of his convictions.'

This brings us to instruction No. 9 given by the trial court on its own motion as follows: 'You are instructed that it is the law of the State of Nebraska that any witness in any case may be asked on cross-examination as to his previous conviction of a felony, as was done in this case when the defendant, Dean Liakas, was being cross-examined. In this connection you are instructed that under the law of Nebraska any previous conviction of a felony may be considered by the jury for the sole and only purpose of affecting the credibility of Dean Liakas, the defendant in this case. Credibility is defined to mean the weight and credit the jury should give the testimony of such a witness--the worthiness of belief of such testimony, and in no way may be considered by the jury as proof of the crime charged in the Information.'

The defendant requested the following instruction No. 6 which was refused: 'You are instructed that it is the law of the State of Nebraska that any witness in any case may be asked on cross-examination as to his previous conviction for a felony, as was done in this case, when Dean Liakas was being cross-examined, and in this connection you are instructed that under the law of Nebraska any previous conviction of a felony may be considered by the jury for the sole and only purpose of affecting the credibility of Dean Liakas, the defendant in this case, and you are further instructed that credibility is defined to mean, which means the weight and credit the jury should...

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  • State v. Hatton
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    ...was or might have been committed is competent." State v. Iddings, 5 Wash.App. 99, 485 P.2d 631, 633 (1971), quoting Liakas v. State, 161 Neb. 130, 72 N.W.2d 677 (1955), cert. denied, 351 U.S. 924, 76 S.Ct. 780, 100 L.Ed. 1454 See also Jones v. United States, 262 F.2d 44 (4th Cir. 1958), cer......
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12 provisions
  • Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
    • United States
    • Constitution of the State of Nebraska 2016 Edition Article I
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    ...v. Hancock, 166 Neb. 637, 90 N.W.2d 298 (1958). Effect of instruction as denial of due process raised but not decided. Liakas v. State, 161 Neb. 130, 72 N.W.2d 677 Constitutionality of statute authorizing service by publication raised but not decided. Johnson v. Richards, 155 Neb. 552, 52 N......
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    • January 1, 2019
    ...v. Hancock, 166 Neb. 637, 90 N.W.2d 298 (1958). Effect of instruction as denial of due process raised but not decided. Liakas v. State, 161 Neb. 130, 72 N.W.2d 677 Constitutionality of statute authorizing service by publication raised but not decided. Johnson v. Richards, 155 Neb. 552, 52 N......
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    • January 1, 2015
    ...v. Hancock, 166 Neb. 637, 90 N.W.2d 298 (1958). Effect of instruction as denial of due process raised but not decided. Liakas v. State, 161 Neb. 130, 72 N.W.2d 677 Constitutionality of statute authorizing service by publication raised but not decided. Johnson v. Richards, 155 Neb. 552, 52 N......
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    • Constitution of the State of Nebraska 2011 Edition Article I
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