Pjarrou v. State
| Decision Date | 03 March 1896 |
| Citation | 66 N.W. 422,47 Neb. 294 |
| Parties | PJARROU v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Evidence examined, and held sufficient to support the verdict.
2. It is the duty of the trial judge, particularly in criminal actions, to instruct the jury as to the rules of law governing the disposition of the cause, whether he is requested to do so or not; and if a charge to a jury, by omission to instruct on certain points, in effect withdraws from the consideration of the jury an essential issue of the case, it is erroneous. Dolan v. State, 62 N. W. 1090, 44 Neb. 643.
3. Where there is such an omission to instruct, but it is clear that the jury have formed the right conclusion, and no prejudice has resulted from the omission, it is not error which calls for a reversal of the judgment.
4. An instruction in this, a prosecution for the crime of robbery, was objected to by counsel on the ground that the instruction was erroneous, in that it submitted to the jury the question of whether the accused, “either alone or in company with others,” committed the acts alleged in the complaint, for the reason that there was no evidence that the defendant acted alone at any time, or without the co-operation of others in the matters charged. Held, that the testimony sustained the instruction given in the particular indicated by the objection.
5. Where it is urged as error that a designated instruction was not sufficiently explicit in its statement of the law applicable to a certain portion of the issues in the case, and it appears that no instruction was prepared by the complaining party and requested to be given in an effort to correct the alleged error, the objection cannot be sustained.
Error to district court, Douglas county; Scott, Judge
F. A. Pjarrou was convicted of robbery, and brings error. Affirmed.
Pratt & Walkup, for plaintiff in error.
A. S. Churchill, Atty. Gen., and Geo. A. Day, Dep. Atty. Gen., for the State.
October 10, 1895, there was filed in the district court of Douglas county an information in which Patrick Ford, Jr., James Gallagher, and the plaintiff in error were jointly charged with the commission of the crime of robbery in said county on September 24, 1895. Plaintiff in error was given a separate trial, convicted, and, after motion for new trial was heard and overruled, was sentenced to serve a term of three years in the penitentiary.
The first alleged error to which our attention is directed by the brief filed by counsel for plaintiff in error refers to the fourth instruction given by the court on its own motion, and which was as follows: “If the state has proven beyond a reasonable doubt that defendant, either alone or in company with others, at and within the county of Douglas, and state of Nebraska, and at any time within three years prior to the commencement of this prosecution, forcibly and by violence, or by putting in fear, unlawfully and feloniously made an assault upon the said August Volter, and that he alone or with others did then and there take from the person of the said August Volter money of some value, with the intent to rob said August Volter, or steal said money, you should convict the defendant.” It is claimed that by this instruction the jury were told that they could find the plaintiff in error guilty of robbery, or, if not, must acquit him. In this connection attention is challenged to the failure of the trial court to define the crimes of larceny from the person, or assault, or any of the lesser crimes included in the crime charged in the information; and it is strenuously urged that the effect of giving the fourth instruction, and the failure to further instruct the jury, to which reference has just been made, combined, was to withdraw from the consideration of the jury the lesser crimes of which he might have been determined guilty; that it was not alone a failure to instruct in regard to the essential issues of the case or a nondirection, but amounted to more,--practically to a misdirection. The information charged, as was necessary according to the definition of the crime of robbery contained in our Criminal Code, (1) the taking of the money, (2) that it was from the person of the party alleged to have been robbed, (3) with a felonious intent, (4) by force, or by putting in fear; and this charge, it is clear, included the lesser crimes of larceny, assault with intent to commit a robbery, or a simple assault. By the plea of not guilty the charge of the information was traversed and put in issue in all its constituent elements, and to the extent that the lesser crimes were included and entered into the charge of the greater they became the subjects in the case, for necessary and strict proof. The fourth instruction, the objection to which we are now considering, was in and of itself a fair and sufficient statement of the general rule of law applicable to the charge of the crime of robbery, and the proof necessary to be produced to warrant a conviction of such crime, and was proper in the case at bar, or, at least, was not open to this objection. There is another urged, which we will notice in its order. The instructions examined and held vicious in the opinions in several of the...
To continue reading
Request your trial