Lukehart v. State

• Decision Date: 20 April 1912
• Docket Number: 17,444
• Citation: 136 N.W. 40,91 Neb. 219
• Parties: CHARLES LUKEHART v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

136 N.W. 40

91 Neb. 219

CHARLES LUKEHART v. STATE OF NEBRASKA

No. 17,444

Supreme Court of Nebraska

April 20, 1912

ERROR to the district court for Thurston county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Thomas L. Sloan and Herman Freese, for plaintiff in error.

Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.

REESE C. J. LETTON, J., not sitting.

OPINION

REESE, C. J.

This is a proceeding in error by plaintiff in error, whom for convenience will hereafter be referred to as defendant, to reverse the judgment of the district court for Thurston county, by which he was adjudged guilty of having stolen property of the value of $ 35.50. The county attorney filed an information in the district court consisting of two counts: The first, charging defendant with having stolen the property; the second, for receiving and buying the same knowing it to have been stolen. At the commencement of the trial the county attorney dismissed the prosecution as to the first count, and defendant was placed upon trial on the second count alone, which charged him with receiving and buying a set of harness of the value of $ 50, the personal property of John Summers, then and there lately stolen from the said Summers, the said defendant well knowing the property to have been stolen. The jury having returned a verdict of guilty and finding the value of the property to be $ 35.50, the defendant was sentenced to confinement in the penitentiary for the indeterminate term of from one to seven years.

Complainant is made of the action of the court in the giving of the sixteenth instruction, given by the court upon its own motion. An examination of the motion for a new trial, filed in the district court, discloses the fact that the giving of this instruction was not assigned as one of the grounds of the motion, and by the well-known rule of practice we are precluded from discussing it. Lackey v. State, 56 Neb. 298, 76 N.W. 561, and cases there cited. Instruction numbered 15 is complained of, but we find no reference to it in the motion for new trial, and it need not be noticed.

Complaint is made of the giving of instruction numbered 8. This instruction defines the crime of larceny. It is insisted that the giving of the instruction was prejudicially erroneous as the accused was not on trial for that offense. There is no objection to the correctness of the instruction as an abstract statement of the law, but it is maintained that, as defendant was not on trial for the larceny, the instruction could not be otherwise than prejudicial. The defendant was on trial for receiving stolen property. Whether the instruction was essential or not, it seems clear that it could work no prejudice to the accused. In order to find defendant guilty it was necessary that the jury determine from the evidence that a larceny of that property had been committed. It seems proper that they should be informed of what that offense consisted. The instruction consisted of a simple definition of larceny without any reference to the question then being tried. It was permissible for the court to inform the jury of what the crime consisted in order that they could pass upon the question of defendant's guilt or innocence intelligently.

Objection is made to the ruling of the court on an objection to the testimony of one Albert Laughlin, who was called by the state in rebuttal. A prosecution was pending against Charles Lambert for stealing the harness in dispute. He was called as a witness for the defendant and denied having stolen the property. On his cross-examination he was asked if at a certain time when he and Laughlin were on the road toward Homer h...