Spreitzer v. State, No. 33051
| Court | Supreme Court of Nebraska |
| Writing for the Court | Heard before SIMMONS; CHAPPELL |
| Citation | 155 Neb. 70,50 N.W.2d 516 |
| Docket Number | No. 33051 |
| Decision Date | 21 December 1951 |
| Parties | SPREITZER v. STATE. |
Page 516
v.
STATE.
Page 518
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.
Page 519
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,[155 Neb. 71] 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.
[155 Neb. 72] 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,
Page 520
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 [155 Neb. 73] 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...
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Grandsinger v. State, No. 33663
...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, Page 644 [161 Neb. 434] Defendant argued that the trial court erred in admitting part of a conversation which defendant had ......
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State v. Coomes, No. 34750
...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 'Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to [170 Neb. 303] desc......
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Vanderheiden v. State, No. 33250
...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......
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Sall v. State, No. 33347
...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......
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Grandsinger v. State, 33663
...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, Page 644 [161 Neb. 434] Defendant argued that the trial court erred in admitting part of a conversation which defendant had ......
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State v. Coomes, 34750
...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 'Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to [170 Neb. 303] desc......
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Winston v. Davis, 37901
...of chance or lot. This case is not too different from the quotient verdict cases heretofore before this court. In Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516 (1951), this court held that if there is an agreement to be bound and the jurors vote accordingly, then the court must grant a new......
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Hertz v. State, 33759
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