Pulliam v. State, 34427

• Decision Date: 16 January 1959
• Docket Number: No. 34427,34427
• Citation: 94 N.W.2d 51,167 Neb. 614
• Parties: E. A. PULLIAM, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 51

94 N.W.2d 51

167 Neb. 614

E. A. PULLIAM, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34427.

Supreme Court of Nebraska.

Jan. 16, 1959.

Syllabus by the Court

1. The function of assignments of error is that they set out the issues presented on appeal. They serve to advise the appellee of the questions submitted for determination in order that the appellee may know what contentions must be met. They also advise this court of the issues which are submitted for decision.

2. In order that assignments of error as to the admission or rejection of evidence may be considered, the holdings of this court require that appropriate reference be made to the specific evidence against which objection is urged.

3. In criminal cases, it is not the province of the court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are for the jury.

4. This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting 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.

5. The credibility of witnesses and the weight of their testimony are for the jury to determine in a criminal case, and the conclusion of the jury should not be disturbed unless it is clearly wrong.

6. The giving of an instruction which submits to the jury the existence or nonexistence of a fact material to the issues in the case on trial, when no evidence has been introduced which would support a finding of its existence, is error for which the judgment may be reversed.

7. It is error to give an instruction which assumes a controverted material fact upon which there is a conflict of testimony.

Chester N. Sutton, Blair, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Richard H. Williams, 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 filed by the State in the district court for Washington County charged defendant, E. A. Pulliam, in four separate counts with the crime of selling mortgaged personal property, and in four other separate counts charged defendant with the crime of removing mortgaged personal property out of and away from Washington County.

Defendant pleaded not guilty to each separate count, and upon trial to a jury defendant's motion for directed verdict made at conclusion of the State's evidence was overruled. Thereafter, upon submission of the issues to a jury, it rendered separate verdicts finding defendant guilty as to counts I, II, III, and IV, but not guilty as to counts V, VI, VII, and VIII. Subsequently, defendant's motion for new trial was overruled. Thereafter, judgment was rendered against defendant, and he was sentenced separately upon the first four counts, but said sentences were ordered to be served concurrently.

Thereupon defendant prosecuted error to this court and assigned in his brief: (1) That there were errors of law occurring at the trial and duly excepted to by defendant; (2) that there was an abuse of discretion by the trial court which prevented defendant from having a fair and impartial trial; (3) that the verdict was not sustained by sufficient evidence; and (4) that the trial court erred in giving instruction No. 29 in connection with the statement that defendant contends he received oral permission from the bank to make each sale. We sustain the last assignment.

Section 69-109, R.R.S.1943, makes it a crime to sell, transfer, or dispose of mortgaged personal property or any part thereof without consent of the owner or holder of the debt secured by said mortgage, and prescribes a penalty for violation. As said in State v. Butcher, 104 Neb. 380, 177 N.W. 184, 185: 'The statute in question contains all the elements of the crime for which it is sought to provide punishment. The offense is purely statutory. The criminal act charged is made to consist in doing the things which the statute inhibits and makes their commission a crime. Hence the law does not provide for criminal intent as being an essentially concomitant ingredient of the crime.' The opinion also held that: '* * * The law was enacted to prevent the fraudulent transfer of mortgaged chattel property.'

On the other hand, section 69-110, R.R.S.1943, makes it a crime to remove, permit, or cause to be removed any mortgaged personal property or any part thereof out of the county within which such property was situated at the time such mortgage was given thereon, with intent to deprive the owner of said mortgage of his security, and prescribes a penalty for violation. As held in Wilson v. State, 43 Neb. 745, 62 N.W. 209: 'Under the statute, the gist of the offense for which punishment is therein prescribed is the fraudulent removal of mortgaged personal property out of the county, with the intent to deprive the owner of the mortgage of his security. The mortgagor who fraudulently removes from the county any portion of the mortgaged chattels, during the existence of the lien or title created by the mortgage, is equally amenable to the provisions of the law as the mortgagor who so removes the entire property mortgaged.' Thus criminal intent is an essential concomitant ingredient or element of such crime.

The information here involved alleged in substance that on or about September 13, 1955, in Washington County, Nebraska, defendant did then and there in due form of law mortgage to North Side Bank, hereinafter called the bank, the following: 354 head of Yorkshire hogs, further separately listed as gilts, shoats, sows, and pigs, described by weight or age and numbers of each; 45 head of Black Angus cattle, further separately listed as bulls, cows, heifers, and calves, described by weight or age and numbers of each; and 133 head of Shorthorn cattle, further separately listed as bulls, cows, steers, and calves, described by weight and numbers of each.

Count I appropriately charged in substance that on or about October 7, 1955, during existence of the lien of said mortgage, defendant unlawfully, fraudulently, and feloniously sold 67 white pigs described in said mortgage as Yorkshires to one Marvin Knickman, doing business as Knickman Livestock Sales Company, without first procuring consent of the bank, owner and holder of the debt secured by said mortgage.

Count II likewise charged in substance that on or about October 4, 1955, during existence of the lien of said mortgage, defendant unlawfully, fraudulently, and feloniously sold four hogs, five yearling calves, and one calf, described in said mortgage, to Omaha Livestock Commission Company, without first procuring consent of the bank, owner and holder of the debt secured by said mortgage.

Count III then appropriately charged that on or about October 7, 1955, during existence of the lien of said mortgage, defendant unlawfully, wrongfully, knowingly, and feloniously removed part of said mortgaged property, to wit, 67 white pigs, out of and away from Washington County, where they had been mortgaged and kept, and that defendant did so with intent to deprive the bank of its security and defraud it thereby.

Count IV likewise charged in substance that on or about October 4, 1955, during existence of the lien of said mortgage, defendant unlawfully, wrongfully, knowingly, and feloniously removed part of said mortgaged property, to wit, four hogs, five yearling calves, and one calf, out of and away from Washington County, where they had been mortgaged and kept, and that defendant did so with intent to deprive the bank of its security and defraud it thereby.

Since defendant was acquitted as to counts V, VI, VII, and VIII, it would serve no useful purpose to review them here.

Under assignments of error numbered herein for convenience as No. 1 and No. 2, defendant argued that the trial court committed prejudicial error in the admission over objection of certain evidence appearing in various places throughout the voluminous record, upon the theory that it erroneously allowed defendant's character to be an issue. To search out and recite such evidence here would serve no useful purpose.

In that respect, as recently as Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628, 630, which presented a comparable situation, we reaffirmed that: 'The function of assignments of error is that they set out the issues presented on appeal. They serve to advise the appellee of the questions submitted for determination in order that the appellee may know what contentions must be met. They also advise this court of the issues which are submitted for decision.

'In order that assignments of error as to the admission or rejection of evidence may be considered, the holdings of this court require that appropriate reference be made to the specific evidence against which objection is urged.'

In that opinion, after citing other authorities from this jurisdiction, we quoted with approval from Minick v. Huff, 41 Neb. 516, 59 N.W. 795, wherein this court held: 'It is no part of the duty of this court to search a record for the purpose of ascertaining if there is error in it. On the other hand, every reasonable presumption will be indulged in favor of the correctness of the judgment of a district court, and any ruling of that court, alleged to be erroneous, must be specifically pointed out, to be reviewed here.'

Viewed in such light, we do not properly have before us for determination the question of admissibility of evidence about which defendant complains, some of which was admitted without objection or adduced by defendant himself, and only part of which was generalized in defendant's argument without any appropriate reference whatever being made in defendant's assignments of error to the specific evidence against which objection is urged. It...