Pauli v. State

• Citation: 37 N.W.2d 717,151 Neb. 385
• Decision Date: 19 May 1949
• Docket Number: 32610.
• Parties: PAULI v. STATE.
• Court: Nebraska Supreme Court

37 N.W.2d 717

151 Neb. 385

PAULI v. STATE.

No. 32610.

Supreme Court of Nebraska

May 19, 1949

Syllabus by the Court.

1. An information which apprises the defendant, with reasonable certainty, of the accusation against him so that he may prepare a defense and plead the judgment as a bar to subsequent prosecution for the same offense, meets fundamental purposes of information, as well as constitutional requirements.

2. Instructions are to be considered together, to the end that they may be properly understood, and, when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated on the giving of the same.

3. The sentence in the first instance lies with the trial judge even when leniency has been recommended, and will not be disturbed unless there is an abuse of sound judicial discretion in such respect.

4. The proof of value and ownership of personal property destroyed in the instant case is sufficient in the absence of evidence contradictory thereto.

5. Evidence examined and held sufficient to sustain a conviction of the destruction of personal property over and above the value of thirty-five dollars as charged in the information under the appropriate section of the statutes.

Straight Townsend, Scottsbluff, for plaintiff in error.

James H. Anderson, Atty. Gen., Walter E. Nolte, Asst. Atty. Gen for defendant in error.

Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE Justice.

The defendant, Lloyd Morris Pauli, was charged with the crime stated in section 28-572, R.S.1943, of felonious, willful and malicious destruction of personal property of a value of more than thirty-five dollars. He was convicted of the offense and sentenced to the State Reformatory for Men at Lincoln, Nebraska, for a period of from 33 to 36 months. He brings the case here to review the record of his conviction by writ of error, and for convenience will hereinafter be referred to as the defendant.

There is little dispute in the evidence. It appears that during the night of June 18 and the early morning hours of June 19, 1948, the defendant broke out a window and entered Our Lady of Guadalupe Church located at 1110 South Twelfth Avenue in the city of Scottsbluff, Scotts Bluff County, Nebraska, and destroyed personal property situated therein such as religious articles used in the ritual of the church during services, totally demolishing the same. The defendant admits that he broke and entered the church and destroyed personal property located therein because he was against the form of worship conducted in the church. There is evidence that the defendant had been drinking intoxicating liquor. A police officer testified he believed the defendant was under the influence of intoxicating liquor and narcotics to some extent, but to what extent is not shown. The defendant, when arrested, had in his possession certain religious articles he obtained while in the church, and apparently did not hesitate to tell the police officers of the destruction he wrought while inside the church. No testimony was offered in behalf of the defendant.

The administrator of Our Lady of Guadalupe Church testified that the real estate was owned by the diocese of Grand Island; that the church was composed of a designated group of people who used the same for services and religious worship; that he was in full and complete charge of the mission or church and familiar with the personal property located therein; that the articles used in the ritual for the religious services were purchased by the people who used the church; that he had been associated with the church since October 1939; and was acquainted with and knew the general extent of the articles which were injured and destroyed during the night of June 18 and early morning of June 19, 1948; that such articles, for the most part, could not be restored to their normal use and were injured and destroyed to the extent of the value of $1,900; and that he fixed the value of the articles so destroyed and demolished on the basis of his experience in purchasing such articles and on an attempt to replace them.

The defendant moved to strike the evidence of the administrator of the church for the reason there was complete lack of evidence that the property belonged to the church, and ownership thereof, as alleged in the information, was one of the essential elements of the offense.

From the record there is no question but that the administrator of the church had the full control and custody of the religious articles that were destroyed, and conducted the services in the church for and in behalf of those persons who worshipped there and who furnished and purchased such articles. It may be true, the administrator's testimony in such respect might have been more detailed or complete with reference to specific items, however, in the absence of contradictory testimony as to the value of such articles and the ownership thereof, we conclude the evidence of the value and ownership of such destroyed articles was ample and sufficient, and the trial court did not commit prejudicial error in overruling the defendant's motion to strike the testimony of the administrator of the church.

Defendant contends the information failed to allege a crime under section 28-572, R.S.1943, for the reason that the alleged ownership of the property is not in either a person or persons, a corporation, or an association of persons, as provided in such section, and calls attention to the language in such statute as follows, with reference to property 'of the value of thirty-five dollars or more, owned by any such person or persons, corporation, or association of persons,' none of which language appears in the information, but merely the language and description 'Our Lady of Guadalupe Church.'

The objection of the defendant to the information is very technical. Supertechnical rules in the drawing of complaints, informations, and indictments have been abandoned by this court in recent years where it appears that the defendant was not misled and understood the charge as filed against him. See Buckley v. State, 131 Neb. 752, 269 N.W. 892.

An information which, with reasonable certainty, apprises the defendant of the charge filed against him so that he may prepare a defense and plead the judgment as a bar to subsequent prosecution for the same offense, meets fundamental purposes of such information, as well as constitutional requirements. See, Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533, 169 A.L.R. 868; Cowan v. State, 140 Neb. 837, 2 N.W.2d 111; s. 29-2308, R.S.1943; Holmes v. United States, 8 Cir., 134 F.2d 125; Id., 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722.

We conclude the information in the instant case fully and adequately informed the defendant of the crime charged. The defendant's contention is without merit, and is overruled.

The defendant predicates error in that the trial court overruled his motion objecting to the introduction of any evidence and submitting the cause to the jury when the information charged the defendant under section 28-572, R.S.1943, rather than under the provisions of section 28-578, R.S.1943. In this connection the defendant relies on the case of Wallace v. State, 91 Neb. 158, 135 N.W. 549, 551.

In the cited case the defendant was charged under the Criminal Code (7776a s. 117b, Comp.St.1909; s. 2145a, Ann.St.1909) with hog stealing, which provided a term in the penitentiary upon conviction. At that time section 119 of the Criminal Code (7778...