Limmerick v. State

• Decision Date: 07 January 1931
• Docket Number: 27179
• Parties: THOMAS LIMMERICK v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

234 N.W. 98

120 Neb. 558

THOMAS LIMMERICK v. STATE OF NEBRASKA

No. 27179

Supreme Court of Nebraska

January 7, 1931

ERROR to the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

One charged with a felony cannot be convicted solely upon his own voluntary admissions to police officers, yet where, in addition thereto, strong circumstantial evidence consistent with the defendant's guilt is shown and slight evidence even remotely consistent with his innocence is produced in opposition thereto, the evidence may be sufficient to warrant a conviction.

Error to District Court, Douglas County; Fitzgerald, Judge.

Thomas Limmerick was convicted of receiving a stolen automobile knowing it to have been stolen, and he brings error.

Affirmed.

C. E Walsh, for plaintiff in error.

C. A. Sorensen, Attorney General, and Irvin Stalmaster, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ., and PAINE, District Judge.

OPINION

PAINE, District Judge.

Defendant was tried in Douglas county upon an information charging him with stealing an automobile, in the first count, upon which the jury found him not guilty; but the jury found him guilty on count two, which charged him with receiving a stolen automobile, knowing it to have been stolen. He was given a sentence of seven years in the penitentiary, which term he is now serving, and brings the case here on a petition in error.

The evidence disclosed by the bill of exceptions may be stated briefly as follows: William N. Gladfelter parked his Chevrolet sedan in front of the Omaha Gospel Tabernacle on Douglas street at 7:45 p. m. January 14, 1929, leaving it with the doors and ignition locked. When he came out of the service at 9:15 p. m. the automobile was gone, and Reverend R. R. Brown notified the police at 9: 20 p. m., and at 10:00 p. m. three vigilant officers of the Council Bluffs force saw the stolen car, of which they had received notice, pass them at the east end of Council Bluffs on the Lincoln Highway. Pursuit was made of the fleeing car and, with an officer on the running board calling for them to halt, it was necessary to head the car off the highway some hundred feet, where it crashed into the police car, bending a front axle.

The defendant was driving the stolen car and gave his name as Clark when first arrested. His brother Earl pointed a shot gun at the arresting officers, and the other two in the car were Campbell and Hunt. After defendant got out of the car and turned around, a revolver was found on the ground at his feet and shells to fit it were found in his pocket.

While being taken to Omaha the next morning by two Omaha officers, the defendant stated that he had rented the stolen car of a man named Blackie at the Capitol pool hall on Fourteenth and Douglas streets in the city of Omaha, and after so renting the car he had driven it over to Council Bluffs, and when the officers ran the car down he was found at the wheel.

Careful investigation disclosed that "Blackie" was an imaginary person, neither the proprietor nor others having heard of such a man. The defendant testified that he and his brother Earl left their home in Omaha by street car at 7:30 p. m., and in going to Council Bluffs passed close by the place where the stolen car was parked. He said that Campbell, driving the car in question, called for them in Council Bluffs, and that Campbell was driving when they were apprehended, and on the trial denied that he had told the Omaha officers that he had rented the car in Omaha.

Sixteen errors are set out in the petition in error. The principal ones relied on for reversal are: Failure to prove intent failure to prove the defendant...