Sedlacek v. State

• Decision Date: 27 December 1946
• Docket Number: 32126.
• Citation: 25 N.W.2d 533,147 Neb. 834
• Parties: SEDLACEK v. STATE.
• Court: Nebraska Supreme Court

25 N.W.2d 533

147 Neb. 834

SEDLACEK v. STATE.

No. 32126.

Supreme Court of Nebraska

December 27, 1946

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Syllabus by the Court.

1. In this state all public offenses are statutory.

2. To charge a statutory offense, the information or complaint must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent.

3. Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute.

4. An indictment or information meets all constitutional requirements (1) If it shows that the acts which defendant is charged with committing amounted to a crime which the court had power to punish, and that it was committed within the territorial jurisdiction of the court, (2) if it informs the defendant of the nature of the charge against him, and (3) if it constitutes a record from which it can be determined whether a subsequent proceeding is barred by the former adjudication.

5. If the information or indictment apprises the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense, it meets the fundamental purposes of an information or indictment, as well as constitutional requirements.

6. At common law the definition of the common law crime of burglary involved the elements of time, place, manner, and intent.

7. Section 29-1507, R.S.1943, does not make an allegation of ownership an essential element in charging the crime of burglary under section 28-532, R.S.1943.

8. The specific ownership of a building involved in the crime of burglary is not an essential element of the offense. An allegation of the ownership as such is immaterial save for the purpose of identifying the property, where the crime allegedly was committed, as not the property of the accused and to show that the defendant had no right to enter the premises.

9. Under section 28-532, R.S.1943, if the information for burglary sufficiently identifies the building allegedly entered, an allegation of ownership is not necessary in order that an offense under the statute be stated.

10. Winslow v. State, 26 Neb. 308, 41 N.W. 1116, is overruled to the extent indicated in the opinion.

11. An information under section 28-532, R.S.1943, alleging that the breaking and entering was done wilfully, maliciously, and forcibly is sufficient to advise the accused that the state alleged that the property entered did not belong to him, and that his entry was unlawful and felonious.

12. The rule that favors granted to jurors during the progress of a trial may vitiate the verdict does not extend to favors innocently granted to prospective jurors, in the absence of any suggestion of prejudice in fact.

13. Defendant in a criminal action has a right to inquire of a state witness whether he is biased and prejudiced against the defendant, and if the witness answers in the negative defendant has a further right to inquire into specific acts of the witness, tending to disclose such bias and prejudice.

14. A tool adapted to the commission of burglary, found near the scene of the crime under circumstances tending to show that it was the tool used in the commission of the offense and tending to show ownership or possession by the accused, is admissible in evidence.

15. A photograph of a part of the interior of a building alleged to have been burglarized, representing conditions as they existed at the time of the alleged burglary, is admissible in evidence.

16. The admission of incompetent evidence, not objected to at the time, is not ground for reversal.

17. If the defendant testifies in his own behalf, the county attorney may, on cross-examination ask him whether he has been convicted of a felony, and, if the witness equivocates in his answer, the prosecutor may ask such additional questions as may be reasonably necessary to bring out the fact of that conviction.

18. An objection to the misconduct of a juror in expressing an opinion or prejudice during the trial, if known to the party at the time of its occurrence and not made the subject of a motion to the court, is waived.

19. Remarks made by the trial court are not ground for reversal where confined to orderly procedure, to the proper ascertainment of issuable facts, to the exclusion of inadmissible or unnecessary testimony, and to the observance by counsel of recognized rules of evidence and procedure.

20. The statute, section 29-2022, R.S.1943, requiring the nonseparation of the jury after the case is submitted to them, is for the protection of both the state and the defendant. The defendant has a right to have the jury kept together after final submission until they agree upon a verdict, or are discharged by the court. It is, however, a right that can be waived.

21. After the jury has retired to deliberate, the testimony of a witness may be read to it at its request in open court in the presence of the defendant, where counsel for defendant is absent at his own request under circumstances that show approval of both defendant and court, and counsel has knowledge of the jury's request and the court's intention to comply therewith in ample time to have been present in court had he so desired.

22. Defendant in a criminal prosecution may not successfully predicate error on the alleged misconduct of the prosecuting attorney and the court in remarks made during the argument to the jury, when he does not ask for an instruction that the statements be disregarded and does not move for a mistrial.

23. Where the court instructs the jury as to the material allegations and elements necessary to be established by the state in order to convict the defendant, it is not necessary for the court further to instruct the jury that if the state has failed to prove one or more of the material allegations and elements, then its verdict should be for the defendant.

24. The failure of the court to qualify 'breaking and entering' and 'crime' by the use of the word 'alleged' in the instruction set out in the opinion does not constitute prejudicial error.

25. Where instructions, considered as a whole, state the law fully and correctly, error will not be predicated therein merely because a separate instruction, considered by itself, might be subject to criticism.

26. Where the charge to the jury, considered as a whole, correctly states the law, the verdict will not be reversed merely because a single instruction, when considered separately, is incomplete.

27. In the absence of a request for such an instruction, it is not error for the trial court to fail to instruct the jury that evidence of a previous conviction of the accused of a felony is to be considered only as affecting his credibility as a witness and is not to be considered as tending to prove the crime charged.

28. The conviction, subsequent to the trial, of a witness for the state of a felony entirely disconnected with the crime alleged against the defendant does not require the granting of a new trial on the ground that it is newly discovered evidence.

29. The facts appearing in the record do not in our opinion call for a reduction of the sentence as excessive under the authority of section 29-2308, R.S.1943.

McKillip, Barth & Blevins, of Seward, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ., and WILSON, District Judge.

SIMMONS Chief Justice.

Plaintiff in error, hereinafter called the defendant, was convicted of the crime of burglary and sentenced. He presents the case for review. We affirm the judgment of the trial court.

The information served on defendant October 17, 1945, charged that on May 12, 1945, in Saline County, he 'did then and there willfully, maliciously and forcibly break and enter into a certain warehouse located on Lots numbered 21 & 22 in Block numbered 121 in the City of Crete, Saline County, Nebraska; that the said werehouse is leased, operated and occupied by William Howlett; with the intent of him, the said Charles Sedlacek, then and there to steal property of value contained in said warehouse,' contrary to the statute, etc.

The statute provides: 'Whoever willfully, maliciously and forcibly breaks and enters into any * * * warehouse * * * with intent to steal property of any value, * * *.' Sec. 28-532, R.S.1943.

By motion to quash made before arraignment, by demurrer ore tenus at the beginning of the trial, by motion at the close of the state's case in chief, by motion for a new trial, and by motion in arrest of judgment, defendant presented the contention that the information does not charge a crime under the laws of this state. The motions and demurrer were overruled. By his petition in error defendant presents the contention here. He contends that there is no sufficient allegation of ownership of the premises, and that the allegation that the property 'is' leased, operated and occupied by William Howlett relates to the date of the information and not to the date of the alleged offense.

We consider this assignment of error in the light of established rules.

In this state all public offenses are statutory. Behrens v. State, 140 Neb. 671, 1 N.W.2d 289.

"To charge a statutory offense, the information or complaint must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent." Dickens v State, ...