Sheppard v. State

• Decision Date: 19 June 1920
• Docket Number: 21365
• Citation: 178 N.W. 616,104 Neb. 709
• Parties: MILAN SHEPPARD v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

178 N.W. 616

104 Neb. 709

MILAN SHEPPARD v. STATE OF NEBRASKA

No. 21365

Supreme Court of Nebraska

June 19, 1920

ERROR to the district court for Hamilton county: GEORGE F CORCORAN, JUDGE. Affirmed.

AFFIRMED.

Prince & Prince and Patterson & Patterson, for plaintiff in error.

Clarence A. Davis, Attorney General, and J. B. Barnes, contra.

MORRISSEY C. J. FLANSBURG, J., not sitting.

OPINION

MORRISSEY, C. J.

Defendant prosecutes error from a conviction in the district court for Hamilton county for receiving a stolen automobile.

The information was in three counts, the first of which charged defendant with receiving, on or about November 1, 1918, a stolen automobile belonging to George W. Jewel. The second count charged the receiving of a stolen automobile, on or about May 1, 1919, the property of J. E. Schaeffer, and the third count charged the receiving of a stolen automobile, on or about April 15, 1919, the property of Lloyd Magney. Defendant was convicted on the third count.

The principal assignment of error is the refusal of the trial court to require the state to elect, at the beginning of the trial, upon which count of the information it would rely for a conviction. Each count of the information was complete in itself, and there was no allegation of any connection between the various offenses charged. The state introduced evidence on each of the three counts. Defendant did not renew his motion to elect until all the testimony had been adduced, and the court then required the state to elect upon which count it would go to the jury.

The question of election is one resting largely in the sound discretion of the trial court. As was said by Justice Harlan in Pointer v. United States, 151 U.S. 396, 403, 38 L.Ed. 208, 14 S.Ct. 410: "While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies, at least of the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment, and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial. The court is invested with such discretion as enables it to do justice between the government and the accused." The same rule has been announced by this court in Korth v. State, 46 Neb. 631, 65 N.W. 792, and in Bartley v. State, 53 Neb. 310, 73 N.W. 744, although in these cases there was a closer relationship between the offenses charged than in the instant case.

But the determining question in each case in whether defendant has been embarassed or confounded in his defense. Practically all of the evidence introduced relating to the crimes charged in the first and second counts was admissible for the purpose of...