Pauli v. State, 32610.

• Court: Supreme Court of Nebraska
• Writing for the Court: MESSMORE
• Citation: 151 Neb. 385,37 N.W.2d 717
• Parties: PAULI v. STATE.
• Docket Number: No. 32610.,32610.
• Decision Date: 19 May 1949

151 Neb. 385
37 N.W.2d 717

PAULI
v.
STATE.

No. 32610.

Supreme Court of Nebraska.

May 19, 1949.

Error to District Court, Scotts Bluff County; Perry, Judge.

Lloyd Morris Pauli was convicted of felonious, willful, and malicious destruction of personalty worth more than $35, and he brings error.

Judgment affirmed.

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.

[37 N.W.2d 718]

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

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