Mason v. State, No. 29861.

• Court: Supreme Court of Nebraska
• Writing for the Court: GOOD
• Citation: 132 Neb. 7,270 N.W. 661
• Parties: MASON v. STATE.
• Docket Number: No. 29861.
• Decision Date: 05 January 1937

132 Neb. 7
270 N.W. 661

MASON
v.
STATE.

No. 29861.

Supreme Court of Nebraska.

Jan. 5, 1937.

Syllabus by the Court.

1. Errors assigned but not argued will be considered as waived. Sweet v. State, 75 Neb. 263, 106 N.W. 31.

2. Error to be available to the complaining party must affirmatively appear in the record.

3. Error is not ground for reversal of a judgment unless prejudicial to complaining party.

4. Motion to strike alias names of defendant from an information, charging him with obtaining merchandise by false pretenses in using name not his own, should be overruled when such motion precedes the taking of evidence.

5. Defendant in a criminal action is allowed wide latitude in cross–examination of state's witnesses. The extent of such cross–examination, however, is committed to the sound discretion of the trial court. An abuse of discretion must be disclosed to predicate error on restriction of cross–examination.

6. It is a general rule in criminal action that evidence of other offenses than the one charged is inadmissible, but an exception is quite uniformly recognized where it is necessary to show the intent or guilty knowledge of the accused.

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

Herschell H. Mason, alias Ralph F. Chambers, was convicted of obtaining goods by false pretenses with intent to defraud, and he brings error.

Affirmed.

[270 N.W. 662]

C. E. Walsh, of Omaha, for plaintiff in error.

Wm. H. Wright, Atty. Gen., and Paul P. Chaney, Asst. Atty. Gen., for the State.

Heard before GOSS, C. J., GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and RAPER, District Judge.

GOOD, Justice.

Herschell H. Mason, plaintiff in error (hereinafter called defendant), was convicted in the district court for Douglas county of the offense of obtaining, by false pretenses, goods, wares and merchandise with the intent to defraud, and was sentenced to a term of five years in the state penitentiary. He brings the record of his conviction to this court for review.

The information charged that defendant represented himself to be Ralph F. Chambers, and that he had established a regular and permanent grocery business at 1428 Military avenue, in Omaha, Nebraska; that said representations were false and fraudulent, and that by such representations he obtained merchandise of the value of $70.

[1] While many errors are assigned, only a few were argued. Only those argued will be considered. Errors assigned but not argued will be considered as waived. Sweet v. State, 75 Neb. 263, 106 N.W. 31.

[2][3] Complaint is made of alleged misconduct of the county attorney in his opening statement to the jury. The only record of statements made by the county attorney is contained in the objections of counsel for defendant and his motion to declare a mistrial and discharge the jury. Whatever statements were made by the county attorney, they were not taken by the reporter and incorporated in the record. The statements of counsel in his objections and motion were not under oath, and, in overruling the motion, the court, who had heard the remarks of counsel, may not have deemed the statements of counsel for defendant as fairly reflecting the facts. It is a rule that error is never presumed. To be available to the complaining party, error must affirmatively appear. Where misconduct of counsel is relied upon as ground for reversal, such misconduct must be shown by the record and must be prejudicial to the rights of the complaining party. Judgment in a criminal action will not be reversed for error as to any matter of procedure, if this court, after an examination of the entire cause, shall consider that no miscarriage of justice has actually occurred. Comp.St. 1929, § 29–2308. This statutory rule has been applied in Baker v. State, 109 Neb. 558, 191 N.W. 666, and Melcher v. State, 109 Neb. 865, 192 N.W. 502. The record does not disclose prejudicial error with respect to misconduct of the county attorney.

[4] Defendant was charged in the information under the name of Herschell H. Mason, alias Ralph F. Chambers, alias H. Macey, alias H. C. Mayson, alias C. W. Horn. When the case was called for trial and before the introduction of evidence, defendant moved the court to strike from the information the alias names of H. Macey, H. C. Mayson, and C. W. Horn. The motion was denied. Defendant assigns error. At the time this motion was presented, the court could not know nor anticipate what the evidence would be and, we...