Roeder v. State

• Decision Date: 14 November 1929
• Docket Number: 26939
• Citation: 227 N.W. 446,119 Neb. 116
• Parties: FRED ROEDER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

227 N.W. 446

119 Neb. 116

FRED ROEDER v. STATE OF NEBRASKA

No. 26939

Supreme Court of Nebraska

November 14, 1929

ERROR to the district court for Adams county: J. W. JAMES, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Evidence examined and outlined in the opinion held sufficient to sustain the verdict.

Error cannot be predicated on refusal to give instructions to the jury, where those given contain the substance of the ones requested.

In a criminal prosecution, where there is evidence tending to prove a motive, the court is justified in refusing to give an instruction that lack of motive is a circumstance, in favor of defendant, to be considered by the jury.

When one part of a conversation is given in evidence by one party the whole on the same subject may be inquired into by the other. Comp. St. 1922, § 8849.

Error to District Court, Adams County; James, Judge.

Fred Roeder was convicted of malicious destruction of personal property of the value of more than $35, and he brings error. Affirmed.

James E. Addie, for plaintiff in error.

C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, and EBERLY, JJ., and REDICK, District Judge.

OPINION

GOOD, J.

Plaintiff in error (hereinafter referred to as defendant) was convicted on an information charging him with malicious destruction of personal property of the value of more than $ 35, and was sentenced to imprisonment in the penitentiary for a period of 18 months. He prosecutes error to review the record of his conviction.

Several of the assigned errors relate to the sufficiency of the evidence to sustain the verdict. From the record the following pertinent facts appear:

The defendant and one Albright each owned and operated threshing machines and were competitors in business. Defendant lived in the city of Hastings. On October 24, 1928, after completing a job of threshing, Albright's machine was moved to the premises of one Hollister and was set in a stubble field, preparatory to engaging in another job of threshing on the following day. After the machine was so placed, Albright cleaned the separator before leaving it for the evening. That night, shortly after 12 o'clock, the separator was discovered to be on fire. It was wholly consumed by the flames. There had been no electrical storm that day or evening, and it was apparent that someone must have set fire to the separator. An examination of the premises about the machine the following morning disclosed foot-prints leading to and from the scene of the fire. These tracks were traced and they came from and returned to a nearby corn-field into which an automobile had been driven and turned around. These foot-prints were carefully examined and disclosed certain peculiarities. The tracks made by the tires of the automobile were also examined, from which it was discovered that a different character of tire was upon each one of the wheels; one being a smooth tire; another with a patch upon it which made a mark at each revolution of the wheel, and the others bearing peculiar marks showing a different kind of tire upon each of the wheels.

For some years previous defendant had done the threshing for Mr. Hollister and others in the neighborhood, and had solicited their threshing jobs for the season of 1928, but had been informed that the jobs had been given to Albright. Suspicion was directed to the defendant, and on the morning of August 25 a deputy sheriff went to defendant's home and found him working upon his threshing machine. The deputy informed him that he was suspected or accused of burning Albright's separator, and requested defendant to go with him to the courthouse, to submit to an examination by the county attorney. Defendant consented and went with the deputy sheriff to the county attorney's office. The county attorney being at the time engaged in his private room, defendant was seated in the outer office, where the deputy left him while he went into the sheriff's office. In a few moments it was discovered that the defendant had left the courthouse, without waiting to be questioned by the county attorney. Search was made for him and he was not found in his room or about the city of Hastings.

It appears that defendant left the city that day, about noon and drove to the home of one Carl Brucker, some seven or eight miles in the country. He tried to induce Brucker to go with him to North Dakota, to there engage in threshing. Brucker's working engagements would not permit him to go at that time. That night Brucker and his mother drove into the city of Hastings. Defendant accompanied them in their car, stating to Brucker that he did not want to bring his own car into Hastings. While in Hastings that evening he obtained his clothing and returned with Brucker and his mother to their home. The next morning he told Brucker that he was going to North Dakota and gave him an address, with the request that Brucker write him and send any clippings, relative to the fire, which might appear in the newspapers. He also told Brucker that the officers were after him but that they would not "get...