Metz v. State

• Decision Date: 07 December 1895
• Parties: METZ v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 547

65 N.W. 190

METZ

v.STATE.

Supreme Court of Nebraska.

Dec. 7, 1895.

Syllabus by the Court.

1. Defendants jointly indicted for a felony, in the discretion of the court, may be separately tried, on motion of either the state or a defendant.

2. Objection to a severance comes too late after the formation of the jury.

3. A building, erected upon a farm, designed and used for the purpose of storing corn after it is husked, is a storehouse and warehouse, within the meaning of section 48 of the Criminal Code, defining burglary.

4. Evidence examined, and held sufficient to establish that the burglary was committed in the night season.

5. A breaking necessary to constitute the crime of burglary may be any act of physical force, however slight, by which the obstruction to entering is forcibly removed.

6. Error cannot be successfully assigned upon the omission of the trial court to instruct the jury, in a criminal prosecution, that the failure of the defendant to testify creates no presumption against him, where no instruction presenting such special feature of the trial was requested.

7. It is error to give an instruction which assumes a controverted, material fact, upon which there is a conflict of testimony.

8. The giving of an erroneous instruction is reversible error, although a correct exposition of the law on the same point has been given to the jury.

9. That a building was burglariously entered, and property stolen therefrom was, soon thereafter, found in the exclusive possession of the accused, do not, alone, raise a presumption of law that he is guilty of the burglary. The inference to be drawn from such facts is for the jury, alone, to determine, when considered in connection with all the other facts proven.

Error to district court, Lancaster county; Holmes, Judge.

George Metz was convicted of burglary, and brings error. Reversed.Alex. Altschuler, J. C. McNerney, and Frank D. Eager, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

NORVAL, C. J.

An information was filed in the district court of Lancaster county charging George Metz and Frank Milehem with the crime of burglary, by feloniously breaking and entering, in the nighttime, the storehouse and warehouse of one Jasper N. Rinford. Metz, without objection on his part until after the jury were selected and sworn, was given a separate trial, which resulted in a verdict of guilty. A motion for a new trial was overruled, and he was sentenced to an imprisonment of two years' duration, and to pay the costs of prosecution, from which he prosecutes a petition in error.

Objection is made that the plaintiff in error was tried separately, and not jointly with Frank Milehem, with whom he was jointly charged in the information. Section 465 of the Criminal Code declares: “When two or more persons are indicted for felony, each person so indicted shall, on application to the court for that purpose, be separately tried,” etc. Under this statute, severance, and separate trials of persons jointly indicted or informed against, are permissible, in felonies, at the discretion of the court. The application to award separate trials may come from the prosecuting officer as well as the defendants. State v. Marvin, 12 Iowa, 499;Allen v. State, 10 Ohio St. 287;Stewart v. State, 58 Ga. 577. The record in this case fails to disclose upon whose motion the severance was granted, nor does it appear that any objection or exception was made by the plaintiff in error to a separate trial until after the selection of the jury. This was too late to make the exception of any avail. State v. McLane, 15 Nev. 345;McJunkins v. State, 10 Ind. 140.

The plaintiff in error questions the sufficiency of the evidence to sustain the verdict. The record shows that the prosecuting witness owned a building 8 feet by 12 feet, and 12 feet high, which was filled with ear corn. There was left an opening near the top through which the corn was thrown into the building, or “crib,” as it is called by some of the witnesses. During the night of August 8, 1894, without the knowledge or consent of Mr. Binford, a board near the bottom of this crib or building was removed, which let a quantity of the corn fall upon the ground. About 12 bushels of this corn was put into a wagon and hauled to Mr. Metz's. Early in the morning of August 9th, the wagon and team were tracked by several persons to the prisoner's house, the corn in question was found in his possession, and the team and wagon were identified as belonging to the prisoner. In addition to the facts and circumstances detailed above, the state produced as a witness one Henry Grossman, who testified, substantially, that Metz came to the witness and tried to induce him to falsely testify in this case that he (Metz) purchased the corn in dispute from him. A written memorandum of such alleged sale, written by Metz in the account book kept by the witness, was introduced in evidence at the trial.

The defendant called witnesses to establish an alibi,--that the prisoner was at home at the time the burglary was committed; also that he purchased the corn from one Connely,and paid him for it. Notwithstanding this testimony, we are constrained to hold that the facts and circumstances detailed by the witnesses for the state were sufficient to justify the jury in reaching the conclusion that Metz participated in the burglary and the stealing of the corn.

The point is made, in the brief of counsel for plaintiff in error, that the building which the evidence disclosed was burglarized is not the one that is described in the information, nor yet one of those mentioned in the section of the statute defining burglary. Whether this contention is well founded is the question which is now to be considered. Section 48 of our Criminal Code declares: “If any person shall, in the night season, willfully, maliciously, and forcibly break and enter into any dwelling house, kitchen, smoke house, shop, office, storehouse, mill, pottery, factory, watercraft, schoolhouse, church or meeting house, barn or stable, warehouse, malt house, still house, railroad car factory, stationhouse, or railroad car, with intent to kill, rob, commit a rape, or with intent to steal property of any value, or commit any felony, every person so offending shall be deemed guilty of burglary, and shall be imprisoned in the penitentiary not more than ten nor less than one year.” The information in the case charges the breaking and entering by the prisoner of a warehouse and storehouse. It will be observed that the provision of the Criminal Code copied above does not contain the word “corncrib,” but, among the buildings subject to burglary, the section enumerates a warehouse and a storehouse. If the building which was broken and entered by the accused is neither a warehouse nor storehouse, within the meaning of the statute under consideration, then it is plain the crime charged has not been committed, and the judgment of conviction cannot stand. The queston lies within a narrow compass, and is simply whether the words “warehouse” and “storehouse,” as employed in the statute, can either, and, if so, which of them, be so construed as to include a building in which corn is stored. “Warehouse” is defined by the Century Dictionary thus: “A house in which wares or goods are kept; a storehouse.” And the same authority defines “storehouse”: “A house in which things are stored; a building for the storing of grain, food stuffs, or goods of any kind; a magazine, a repository; a warehouse; a store.” Bish. St. Crimes, § 293, defines the word “warehouse” as follows: “In popular language, and, by the better opinion, in legal, this word signifies an apartment or building for the temporary deposit of goods. Therefore, a cellar wherein they are kept, to be removed when wanted for sale, or a railroad depot, for the reception of goods and passengers, is a warehouse.” 1 Whart. Cr. Law, § 794c, says the word “storehouse” is a wider term than warehouse, and includes a storage for family as well as for business purposes. The definition of “corncrib,” as given by Webster's Dictionary, is “a crib for storing corn.” The evidence on the trial showed that the building broken and entered was what is commonly called a “corncrib.” It was erected on the farm of the prosecuting witness, and designed and used by him for the exclusive purpose of storing corn, raised upon the farm, after it was husked. In the light of the foregoing definitions, we are fully satisfied that the building in question was a “storehouse and warehouse,” within the intent and meaning of the statute defining burglary, and...