Neal v. State

• Decision Date: 15 December 1919
• Docket Number: 21089
• Citation: 175 N.W. 669,104 Neb. 56
• Parties: RED NEAL v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

175 N.W. 669

104 Neb. 56

RED NEAL v. STATE OF NEBRASKA

No. 21089

Supreme Court of Nebraska

December 15, 1919

ERROR to the district court for Douglas county: WILLIAM A. REDICK JUDGE. Affirmed.

AFFIRMED.

Ernest F. Armstrong, Kelligar & Ferneau and Albert S. Ritchie, for plaintiff in error.

Clarence A. Davis, Attorney General, and A. V. Shotwell, contra.

OPINION

DEAN, J.

In the district court for Douglas county it was charged that, on or about September 28, 1918, defendant "did feloniously procure, incite, abet and aid" W. J. McKenna and L. C Jones in the "felonious stealing, taking, moving and driving away" of an automobile touring car, the property of C. J. Tamulewicz, of the value of $ 1,145.

Defendant was convicted and prosecutes error.

Both McKenna and Jones pleaded guilty and voluntarily testified on the part of the state. About a month after the Tamulewicz car was stolen McKenna was informed against and charged in the same court with stealing another automobile known as the Judson car. On the cross-examination in the present case he was asked respecting the Judson car: "Q. Did you or did you not steal it? * * * A. I am not here to perjure myself, and I will not incriminate myself." The court sustained McKenna in his refusal to answer. This was not error. In Pitcher v. People, 16 Mich. 142, in an opinion by Judge COOLEY, the court say: "When an accomplice consents to be used by the prosecution as a witness, while he is compelled, on cross-examination, to testify fully concerning the transaction under investigation, he cannot be forced to testify as regards his criminality in other cases."

Defendant complains because Mrs. Bowles was permitted to relate the substance of certain damaging admissions made to her by McKenna after the theft of the Tamulewicz car, in which he implicated Neal and another. This was not error. "Where the conspiracy contemplates a series of crimes, acts and declarations of a conspirator during the existence of the conspiracy, although after the commission of the specific crime for which defendant is on trial, are admissible." 16 C. J. 663, sec. 1319.

Defendant did not avail himself of his privilege to testify, and with the exception of one witness who testified briefly and not at all as to the merits, no testimony was offered on his behalf. He now argues that an instruction requested by him containing this language should have been given: "Even if he introduced no evidence at all to overcome or explain that against him, the jury should acquit him, unless the evidence introduced by the state satisfies you, beyond a reasonable doubt, that he is guilty as charged in the information." We do not agree. The jury was correctly instructed on reasonable doubt. It was not incumbent on the court to inform the jury that defendant introduced no evidence to overcome or to explain the state's evidence. People v. Hummel, 104 N.Y.S. 308; State v. Hogan, 115 Iowa 455, 88 N.W. 1074.

Defendant complains because this requested instruction was refused: "You are instructed that if a witness, who was an accomplice of the defendant, has wilfully sworn falsely in regard to a material matter upon the trial of this case, the evidence of such accomplice is not sufficient to sustain a conviction of the defendant, unless such evidence is corroborated by other evidence." In this ruling error was not committed. It is one of the functions of the jury to pass on the probative value of such testimony. 16 C. J. 695, sec. 1422, and p. 957, sec. 2342.

Exceptions are taken to instructions 7 and 8. Defendant argues: "The giving of these instructions was error because they stated to the jury that, if Neal agreed with others to a common plan to procure, aid and abet McKenna and Jones, and in pursuance of such plan the Tamulewicz car was stolen, that would be sufficient to convict. An aider or abettor must be actually or constructively present at the commission of a felony." We do not think defendant's argument is tenable. One who incites or instigates the commission of a felony when he is neither actually nor constructively present is an aider, abettor or procurer within the meaning of section 8579, Rev. St. 1913. Lamb v. State, 69 Neb. 212, 95 N.W. 1050; Skidmore v. State, 80 Neb. 698, 115 N.W. 288.

In the instruction numbered 9 the jury were informed, among other things, that "a person charged with the commission of a crime is a competent witness in his own behalf, but the fact that he has not availed himself of such privilege should not be taken by you as creating a presumption against him." Defendant argues: "Under our statute (Rev. St. 1913, sec. 9114), defendant is not a competent witness unless he requests so to be, and to say that he is without modification is error." The exception is technical and appears to be without substantial merit. The court modified the instruction by informing the jury that "the fact that he has not availed himself of such privilege should not be taken by you as creating a presumption against him." The statute was substantially complied with.

Defendant complains of the court's refusal to give his offered instruction numbered 9. The court did not err in its ruling, because every element in the requested instruction is covered in another instruction wherein the jury is informed that before they could find defendant guilty they must be satisfied beyond a reasonable doubt that McKenna and Jones stole the car in question, and that prior to the stealing defendant procured, incited,...