Perry v. State

• Decision Date: 04 April 1895
• Citation: 44 Neb. 414,63 N.W. 26
• Parties: PERRY v. STATE.
• Court: Nebraska Supreme Court

44 Neb. 414

63 N.W. 26

PERRY

v.STATE.

Supreme Court of Nebraska.

April 4, 1895.

Syllabus by the Court.

1. When the surname and the initials of the Christian name of a witness appear upon an information in a criminal prosecution, it is a sufficient compliance with the statute requiring the names of the state's witnesses to be indorsed upon the information before trial.

2. In a prosecution for larceny, if the owner of the property alleged to have been stolen is examined as a witness upon the trial, his testimony that he did not consent to the taking of the property is indispensable to a conviction.

Error to district court, Fillmore county; Hastings, Judge.

John R. Perry was convicted of larceny, and brings error. Reversed.Farrington Power and John C. Martin, for plaintiff in error.

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

NORVAL, C. J.

An information was filed by the county attorney in the district court of Fillmore county, charging John R. Perry, the plaintiff in error, with the larceny of a buggy of the value of $50, the property of one John W. Frantz. Upon the trial of the prisoner, verdict of guilty was returned, and he was sentenced to the penitentiary for the period of one year, and to pay the costs of the prosecution, taxed at $228.68.

It is contended that the court erred in permittingAlbert F. Herriot to testify as a witness on behalf of the state, for the reason that his full Christian name was not indorsed upon the information, his initials and surname alone being thereon indorsed. The statute (section 579 of the Criminal Code) requires that the names of the state's witnesses in a criminal prosecution must be indorsed upon the information before the trial. Strictly speaking, the name of a person consists of his given and sur names; yet we are unwilling to hold that the full Christian name of the witness must be indorsed on an information, although the better practice is for the county attorney to do so. Where the witness' surname and the initials of his Christian name appear upon the information, it is a sufficient compliance with the law. Initials only for the given name are frequently used both in official and business transactions, and to declare that, when such initials are employed, it is no name, would be a harsh rule. Such a construction would invalidate an information signed by the county attorney by the initials of his Christian name. It has been held that where an officer, in signing the jurat to the verification of an information in a criminal case, gave the initials only of his Christian name, it is a sufficient signing. Rice v. People, 15 Mich. 9. See Fewlass v. Abbott, 28 Mich. 270. The objection to the examination of the witness Herriot is not well taken, and is overruled.

The next assignment of error is that the verdict of guilty is not supported by sufficient evidence. The only testimony in the case was that given on the part of the prosecution, and it is urged that it does not show that the buggy in question was stolen, or taken without the consent of the owner. It is an elementary rule in criminal law that it is indispensable to the commission of larceny that the property alleged to have been stolen should have been taken against the will of the owner, and it is incumbent upon the state in such a prosecution to establish that fact before a conviction can be had. Does the proof show that the buggy was taken against the consent of the owner? The question must be answered in the negative. From the evidence returned in the bill of exceptions, it appears that the prosecuting witness, John W. Frantz, at the time of the alleged theft, resided in ...