Spreitzer v. State, 33051

Citation155 Neb. 70,50 N.W.2d 516
Decision Date21 December 1951
Docket NumberNo. 33051,33051
PartiesSPREITZER v. STATE.
CourtSupreme Court of Nebraska

Syllabus by the Court.

1. An information which apprises the defendant, with reasonable certainty, of the accusation against him so that he may prepare a defense and plead the judgment as a bar to subsequent prosecution for the same offense, meets fundamental purposes of information, as well as constitutional requirements.

2. Whenever the facts stated in the record are consistent with the duty of the court, and nothing is shown to establish a contrary theory, it will be assumed that the court acted properly and all things were rightly done.

3. In a prosecution for larceny, proof of the value of the property stolen must be made by at least one witness affirmatively shown to possess knowledge of the value concerning which he is called upon to give evidence.

4. It is not the province of this court to resolve conflicts in the evidence in law actions, pass on the credibility of witnesses, determine the plausability of explanations, or weigh the evidence. Those matters are for the jury.

5. In a criminal case, this court will not interfere with a verdict of guilty based upon the 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.

6. The invalidity of a quotient verdict depends not upon the method of arriving at the verdict or the result reached but on a previous agreement by all of the jurors to be bound by the result of the quotient process. The test to be applied in determining the validity of a verdict which is attacked as a quotient verdict is whether the jury agreed beforehand to be bound by the result reached; the existence of such agreement is the test in both criminal prosecutions and civil actions.

7. No affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered, or to show a mistake in it; or that they misunderstood the charge of the court; or that they otherwise mistook the law, or the result of their finding.

8. An affidavit of a juror as to what items the jury allowed or disallowed in computing the amount due, or what the jury believed they had a right to do under the instructions, is incompetent. Such matters are commonly held to inhere in the verdict.

9. It is proper to charge, and error to refuse to charge, that a reasonable doubt may arise either from the evidence or from a want of evidence, and that the absence of sufficiently satisfying evidence may be a ground for a reasonable doubt of defendant's guilt.

10. It is elementary that in passing upon the validity of part of an instruction, it must be considered not only in the light of all the language used in the particular instruction of which it is a part, but also all other instructions given by the trial court.

Francis M. Casey, Plattsmouth, Grenville P. North, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Clarence A. H. Meyer, Asst. Atty. Gen., Walter E. Nolte, Deputy Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

A jury found plaintiff in error, hereinafter called defendant, guilty of grand larceny. His motion for new trial was overruled, and the trial court sentenced him to be imprisoned in the Nebraska State Penitentiary for two years. Therefrom he prosecuted error to this court, assigning substantially: (1) That the information did not charge an offense under the statute; (2) that the trial court erred in failing and refusing to give him six peremptory challenges; (3) that the verdict was not sustained by the evidence but was contrary thereto and contrary to law; (4) that the jury was guilty of prejudicial misconduct by the manner in which it arrived at the value of the property allegedly taken; and (5) that the trial court erroneously failed to instruct on the law applicable to the case, and in giving instructions Nos. 1, 4, 5, 6, and 13. We conclude that the assignments have no merit.

The statute involved, section 28-506, R.R.S.1943, provides: 'Whoever steals any money or goods and chattels of any kind whatever, whether the same be wholly money, or wholly in other property, or partly in money and partly in other property the property of another, of the value of thirty-five dollars or upwards * * * shall be imprisoned in the penitentiary not more than seven years nor less than one year.'

In the light thereof, we have examined the information and conclude that it did sufficiently charge the offense of grand larceny. The information, insofar as important here, charged that on September 8, 1950, contrary to the form of the statutes in such cases made and provided, defendant 'did unlawfully, wrongfully and feloniously and with the intent to steal, did take and carry away from the premises of the Union Pacific Railroad Company at Higgins Crossing in said County of Sarpy, State of Nebraska, property of value, to-wit: Fourteen (14) unused railroad crossties of the value of $35.00 and upwards, and being then and there the property of the said Union Pacific Railroad Company.'

In Hans v. State, 147 Neb. 67, 22 N.W.2d 385, 389, this court held: 'In charging the commission of an offense in an information, it is not necessary that the exact words of the statute be used, provided the words employed are the equivalents in meaning of those contained in the statute. * * *

'The court will give the words used in the information their ordinary and commonly accepted meaning, and when viewed in this light, if the words employed mean the same thing as those found in the language of the statute denouncing the offense, the information will be upheld.'

In Pauli v. State, 151 Neb. 385, 37 N.W.2d 717, it was held: 'An information which apprises the defendant, with reasonable certainty, of the accusation against him so that he may prepare a defense and plead the judgment as a bar to subsequent prosecution for the same offense, meets fundamental purposes of information, as well as constitutional requirements.'

Only recently this court reaffirmed the rule that: 'A complaint or information is fatally defective only if its allegations can be true and still not charge a crime.' Phillips v. State, 154 Neb. 790, 49 N.W.2d 698.

The foregoing rules have application here, and affirm the sufficiency of the information.

For the first time, and that on motion for new trial, defendant complained that the trial court erroneously failed and refused to allow defendant six peremptory challenges. In that respect the record discloses as follows: 'MONDAY, MARCH 19th, 1951, 10:00 A.M.: (Jury names drawn by the Clerk, examination for cause by attorneys for Plaintiff and Defendant.) MONDAY, MARCH 19th, 1951, 1:30 P.M.: (Impanelling of jury continued, and challenges exercised by Plaintiff and Defendant.) * * * Jury empaneled and sworn at 2:24 P.M.'

It does not appear any place in the record that the court failed or refused to give defendant six peremptory challenges or that defendant requested the same. Rather, the record discloses that he exercised two such challenges then waived the third, and, without making any request or taking any exceptions, presumptively waived the other three. If the defendant did not exercise all of them, the court was not at fault. It can only be concluded that defendant was satisfied with the jury until it found him guilty, and then, as an afterthought, raised the question without anything in the record to sustain it.

As stated in Nash v. State, 110 Neb. 712, 194 N.W. 869, 871: 'The record shows that the jury were duly impaneled and sworn, and, nothing appearing to the contrary, the presumption is that the jury were properly and lawfully selected. * * * The fact appearing in the record that no exceptions were taken to the jury by the defendants indicates that it was a fair and impartial jury, such as the Constitution guarantees to a party. The defendants were tried by a jury to which they took no exceptions, and this in itself should constitute a waiver of further peremptory challenges.'

Also, as held in Hampton v. State, 148 Neb. 574, 28 N.W.2d 322, 323: 'Whenever the facts stated in the record are consistent with the duty of the court, and nothing is shown to establish a contrary theory it will be assumed that the court acted properly and all things were rightly done.' We conclude that the second assignment of error has no merit.

We turn then to the third assignment, relating to insufficiency of the evidence. In that connection, the record discloses that eye witnesses identified defendant as one of several men who, at the time and place alleged, loaded the 14 new and unused cross ties belonging to the Union Pacific Railroad in a truck identified by description and license number, and hauled them away without the owner's permission. In fact, defendant was identified as the driver of the truck. The ties were soon thereafter located at a feed lot just south of Omaha, on the Fort Crook road, where they were being used by the feeder to build a fence and loading chute. Such feeder, as a witness for the State, admitted that in accord with a prior arrangement, he bought the ties from defendant, paying him therefor the sum of $14. Such witness testified on cross-examination, but over objection by the State, and without any foundation, that on September 8, 1950, he considered that $14 was their fair value. There was competent evidence that defendant admitted to an investigator that, using his own truck, he hauled the ties to the feeder and sold them to him, but claimed that he had overtaken a panel truck driver under a highway overpass and purchased the ties from such truck driver, without knowing who he was or who owned the ties.

The ties were new creosoted railroad cross ties, designed for,...

To continue reading

Request your trial
13 cases
  • Grandsinger v. State
    • United States
    • Nebraska Supreme Court
    • 16 Diciembre 1955
    ...that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.' Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516, 519. Defendant argued that the trial court erred in admitting part of a conversation which defendant had with a sheriff from......
  • State v. Coomes
    • United States
    • Nebraska Supreme Court
    • 15 Abril 1960
    ...in meaning of those contained in the statute.' Benedict v. State, supra. See, also, Fredericksen v. Dickson, supra; Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516. 'Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such ......
  • Sall v. State
    • United States
    • Nebraska Supreme Court
    • 4 Diciembre 1953
    ...123 Neb. 605, 243 N.W. 837; MacDonald v. State, 124 Neb. 332, 246 N.W. 716; Hans v. State, 147 Neb. 67, 22 N.W.2d 385; Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516. The words employed in the charge to the jury were the equivalent in meaning of the words of the statute defining the offense......
  • Vanderheiden v. State
    • United States
    • Nebraska Supreme Court
    • 3 Abril 1953
    ...aspect.' Egbert v. State, 113 Neb. 790, 205 N.W. 252, 253. See, also, Clark v. State, 151 Neb. 348, 37 N.W.2d 601. In Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516, 519, this court held that: 'It is not the province of this court to resolve conflicts in the evidence in law actions, pass on......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT