Reehle v. State
| Decision Date | 07 April 1939 |
| Docket Number | 30567. |
| Citation | 285 N.W. 108,136 Neb. 128 |
| Parties | REEHLE v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Identification of visual evidence as the stolen property is one of the elements that must be shown in proving a foundation for the admission of exhibits of property found in the possession of the accused following a robbery.
2. The identifying evidence required depends upon the circumstances of each particular case. Here the facts proven are an insufficient basis for the admission in evidence of the articles offered.
Error to District Court, Otoe County; Wilson, Judge.
Walter Reehle was convicted of burglary, and he brings error.
Judgment reversed and cause remanded for further proceedings.
In prosecution for burglary of merchandise store, from which a large amount of articles of general commerce, including popcorn, certain brands of cigars, smoking tobacco, and chewing tobacco, and certain brand of coffee was taken, court committed prejudicial error in admitting exhibits which were found in accused's automobile, in his coat, or at place where he resided with others, consisting of three kernels of popcorn, and two cans of tobacco, two plugs of chewing tobacco, four cigars, and a can of coffee of the same brands as those stolen, and a can of tobacco, unlike any stolen.
Lloyd E. Peterson, of Nebraska City, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and C. S. Beck, Asst. Atty. Gen., for the State.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ.
The defendant was charged with the crime of burglary, tried and convicted, and, after a motion for a new trial was made and overruled, was sentenced to prison for three years. He appeals to this court, alleging errors of the trial court.
A general merchandise store at Palmyra, in Otoe county Nebraska, was broken into on the night of February 12-13 1938. Mr. Haley, the proprietor, testified that the following articles were missing from his store after the burglary; two one hundred-pound sacks of sugar, four or five forty-eight-pound sacks of flour, some coffee, four cases of eggs of thirty dozen to a case, pipes, cigars, cigarettes, several kinds of chewing and smoking tobacco, pop corn, walnuts, canned goods, overalls, shirts, etc.
The evidence against the defendant was entirely circumstantial. We mention only the evidence that applies to the admission in evidence of certain exhibits.
On the second day following the burglary, officers visited a home in the city of Lincoln, occupied by two sisters, a child, and the defendant, and were permitted to search defendant's room and other parts of the house. Defendant occupied a room on the second floor. Living quarters were on the first floor.
The articles, hereinafter referred to, as found in the house, were in that part occupied by the landlady and her sister, as well as the defendant, for living quarters.
Mr Haley testified that on the night before the robbery he had in the store one box of Sun Tan cigars, one-half or two-fifths full; that, after the robbery, only one or two were left in the box. In a coat belonging to the defendant, the officers found four Sun Tan cigars. Mr. Haley testified that some pop corn was missing. The officers testified that they found three kernels of pop corn on the back floor of the defendant's car. Mr. Haley testified that he missed Prince Albert tobacco of the size cans that " come in fifteen cent cans and retail at fifteen cents two for a quarter." Two small cans of Prince Albert tobacco were found in the defendant's car. An opened Velvet humidor tobacco can was found in the residence. It is much larger than the Prince Albert cans. Its contents were partly gone, and it contained cigarette papers. Mr. Haley testified that he missed horseshoe tobacco. Two small plugs of horseshoe tobacco were found in the defendant's car. Mr. Haley testified that he lost Bliss coffee. An unopened can of Bliss coffee was found in the residence. Without further identification, other than testimony of the officers that they found the articles, as above set out, and over proper objections of the...
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