Phillips v. State

• Decision Date: 06 November 1951
• Docket Number: No. 33032,33032
• Citation: 154 Neb. 790,49 N.W.2d 698
• Parties: PHILLIPS v. STATE.
• Court: Nebraska Supreme Court

Page 698

49 N.W.2d 698

154 Neb. 790

PHILLIPS v. STATE.

No. 33032.

Supreme Court of Nebraska.

Nov. 6, 1951.

Syllabus by the Court.

1. A complaint or information is fatally defective only if its allegations can be true and still not charge a crime.

2. The essential elements of an offense under section 28-534, R.R.S.1943, required to be charged and proved by the State, are the possession of instruments or tools suitable for breaking and entering with the intent to use them for a burglarious purpose.

3. A plea of abatement for variance is unavailing where the information which charges an offense is based upon the same transaction for which defendant had a preliminary hearing upon a complaint substantially charging the same offense as in the information.

4. The material elements of the crime of possession, custody, or control of instruments or tools with intent to break and enter may be proved by direct or circumstantial evidence.

5. The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect accused with the crime charged are of such conclusive nature as to exclude every reasonable hypothesis except that of his guilt.

6. It is the province of the jury to determine the circumstances surrounding and which shed light upon the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they cannot be accounted for upon any rational theory which does not include the guilt of the accused, the proof cannot as a matter of law, be said to have failed.

7. In a criminal case, this court will not interfere with a verdict of guilty based upon the evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

8. In a prosecution for possession of burglar's tools and implements, the ownership thereof is ordinarily immaterial.

9. In such a case, the possession may be actual or constructive, and unless expressly provided by statute, possession upon one's person is not necessary. Two persons may have constructive possession or one may have actual possession and the other, constructive possession.

10. The possession of burglarious implements or tools with a guilty intent may be joint as well as several, and where the guilty intent of several is manifested by their joint act, it becomes a joint offense.

11. When complaint is made of the refusal of the district court to give an instruction requested, the burden is upon the party complaining to show not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.

12. Under our code of criminal procedure, the law does not distinguish between principals in the first and second degrees, and whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.

13. The same rule as to the information, conduct of the case, and punishment, applicable to a principal in fact now governs his aider, abettor, or procurer, and no additional facts need to be alleged in an information against the latter than are required against his principal.

14. An instruction will not be held to be prejudicially erroneous merely because of a harmless imperfection which cannot reasonably be said to have confused or misled the jury to the prejudice of the party complaining.

15. The word 'or' when used not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same result, states but a single ground, and not the alternative.

16. The words 'possession, custody or control' as used in section 28-534, R.R.S.1943, express an alternative of terms, definitions, or explanations of the same thing in different words.

Casey & Chovanec, Plattsmouth, Warren C. Schrempp, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., William T. Gleeson, Asst. Atty. Gen., for defendant in error.

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

CHAPPELL, Justice.

An information charged defendant with unlawful possesson of certain described instruments and tools, with intent feloniously to break and enter into a building containing valuable property. Upon a plea of not guilty, he was tried to a jury and found guilty as charged. His motion for new trial was overruled, and in the light of plaintiff's previous record, as was done and approved in Maher v. State, 144 Neb. 463, 13 N.W.2d 641, the trial court sentenced defendant to serve four years in the Nebraska State Penitentiary. In that connection, the sentence imposed was less than the five year maximum authorized by section 28-534, R.R.S.1943.

Therefrom defendant prosecuted error to this court, assigning substantially that the trial court erred: (1) In failing to sustain defendant's motion to quash the information; (2) in failing to sustain defendant's plea in abatement for want of a preliminary hearing because of an alleged fatal variance between the original complaint, which allegedly did not charge an offense under section 28-534, R.R.S. 1943, and the information, which admittedly did allege an offense thereunder; (3) in the admission and exclusion of certain evidence; (4) in the refusing and giving of certain instructions; and (5) that the verdict was not sustained by the evidence but contrary thereto and contrary to law. We conclude that the assignments should not be sustained.

In the light of the record before us, the first assignment of error may be considered as waived. In that regard, defendant conceded in his brief that the information properly charged an offense under the statute. His brief argued none of the grounds alleged in his motion to quash, and none of such grounds could logically be said to raise the issue that on the record he had been denied a preliminary hearing. That objection was, however, concededly raised for the first time by his plea in abatement, which the second assignment alleges was erroneously overruled.

Since the information admittedly charged an offense under section 28-534, R.R.S.1943, then by analogy the second assignment of error has no merit if the original complaint to which defendant pleaded not guilty and upon which he was concededly given a preliminary hearing in the county court was sufficient to charge the same offense. We conclude that it was.

The answer is found in O'Neill v. State, 105 Neb. 824, 182 N.W. 503, wherein it was concluded that an information identical with the complaint at bar in all material respects was sufficient to charge an offense under the same statute. We have heretofore held that a complaint or information is fatally defective only if its allegations can be true and still not charge a crime. Hunt v. State, 143 Neb. 871, 11 N.W.2d 533.

The essential elements of an offense under section 28-534, R.R.S.1943, required to be charged and proved by the State, are the possession of instruments or tools suitable for breaking and entering with the intent to use them for a burglarious purpose. O'Neill v. State, supra; 12 C.J.S., Burglary, § 69, p. 753; 9 Am.Jur., Burglary, § 86, p. 281, § 88, p. 282; Annotation, 103 A.L.R. 1313. Both the complaint and information alleged such elements, and sufficiently stated an offense under the statute. The applicable rule is that where the record, as here, clearly shows that an information which charges an offense was based upon the same transaction for which defendant had a preliminary hearing upon a complaint substantially charging the same offense as in the information, then a plea of abatement for variance is unavailing. Wheeler v. State, 79 Neb. 491, 113 N.W. 253; Mills v. State, 53 Neb. 263, 73 N.W. 761. Therefore, we conclude that defendant had a preliminary hearing upon the offense charged in the information, and the second assignment has no merit.

For clarity of discussion we will next turn to the fifth assignment. In doing so, we conclude that evidence adduced by the State was amply sufficient to sustain the verdict. In that regard, defendant offered no competent evidence to refute or deny the State's evidence. In Kitts v. State, 153 Neb. 784, 46 N.W.2d 158, 160, a case strikingly similar to that at bar in its factual aspects, this court concluded that the material elements of the crime of possession, custody, or control of instruments or tools with intent to break and enter, as defined by section 28-534, R.R.S.1943, may be proved by direct or circumstantial evidence, and that this court in a criminal action will not interfere with a verdict of guilty based upon the evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt. That opinion also specifically held: 'The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect accused with the crime charged are of such conclusive nature as to exclude every reasonable hypothesis except that of his guilt.

'It is the province of the jury to determine the circumstances surrounding and which shed light upon the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they cannot be accounted for upon any retional theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed.'

Bearing such rules in mind, we have examined the record, which discloses that on July 6, 1950, in Union, Cass County, Nebraska, a witness left his house about 11:30 p. m. to deposit some letters in the post office. As a matter of habit he walked west...