State v. Alvarez, 38443

• Decision Date: 24 November 1972
• Docket Number: No. 38443,38443
• Citation: 189 Neb. 276,202 N.W.2d 600
• Parties: STATE of Nebraska, Appellee, v. Alvaro ALVAREZ, Appellant.
• Court: Nebraska Supreme Court

Page 600

202 N.W.2d 600

189 Neb. 276

STATE of Nebraska, Appellee, v. Alvaro ALVAREZ, Appellant.

No. 38443.

Supreme Court of Nebraska.

Nov. 24, 1972.

Syllabus by the Court

1. Whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.

2. Mere presence, acquiescence, or silence in the absence of a duty to act is not enough to constitute one an accomplice, and the knowledge that a crime is being or about to be committed does not constitute one an accomplice.

3. Aiding and abetting involves some participation in the criminal act or involves some conscious sharing in the criminal act, as in something that accused wishes to bring about, in furtherance of the common design, either before or at the time the criminal act is committed, and it is necessary that he seeks by his action to make it succeed.

4. The advice or encouragement which will render one an accessory before the fact may be by acts, or words, but it must, to create guilt, be used with the intent to encourage and abet the crime.

5. When the evidence in a criminal prosecution is insufficient to prove guilt beyond a reasonable doubt the court should direct a verdict for the accused.

James T. Hansen, C. F. Fitzke, Gering, for appellant.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Asst. Atty. Gen., Robert G. Avey, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

The defendant, Alvaro Alvarez, was charged with the unlawful sale of cannabis. He was tried before a jury on December 1, 1971, a verdict of guilty was returned, and the court imposed a sentence of 1 to 2 years in the Nebraska Penal and Correctional Complex. He then perfected his appeal to this court. He makes the following assignments of error: (1) The court erred in denying his motion for absolute discharge because of the failure of the State to bring him to trial within the period provided by sections 29--1205 to 29--1209, R.S.Supp., 1971, which became effective April 30, 1971; (2) the court erred in denying his motion for a directed verdict because the conviction is not sustained by the evidence; and (3) the court erred in refusing to give a requested instruction on a claimed 'lesser included offense' of possession of cannabis.

We first consider the claim of the defendant with reference to the sufficiency of the evidence. We conclude that the contention of the defendant is well founded and that the verdict should have been directed for him. This makes it unnecessary to consider the other assignments.

The State's theory of the case is that the defendant aided and abetted one Wagner in the sale of marijuana. The evidence against the defendant consisted of the testimony of an undercover agent hired by the State and local authorities to procure evidence of marijuana and drug violations. The testimony of the agent briefly summarized is as follows.

The witness had first met Wagner in October 1970. In December 1970, he encountered Wagner at a lunch counter in Scottsbluff. At that time Wagner told the agent and the agent's associate that he, Wagner, had a friend who had marijuana for sale for $15 a lid. The agent agreed to buy a lid and the witness' associate agent, in the presence of the witness, gave Wagner $15. The three persons then, at Wagner's direction, drove to a residence in Scottsbluff where Wagner got out, went into the residence, returned, and angrily reported the marijuana was not where it was supposed to be. Wagner then directed the agents to drive to an apartment house in the 1100 block of Avenue C, Scottsbluff. The three went to a particular apartment. Wagner knocked on the door. There was no response. Wagner forced an entry into the apartment through a rear window and admitted the agents. The agents, apparently alarmed at the method of entry, said they had to leave. Wagner told them if they would come back about 5:30 p.m., he would give them the marijuana. The agents left. Wagner remained at the apartment.

At about 6:15 p.m., the agents returned to the apartment and knocked on the door. The door was opened, they were greeted by the defendant Alvarez and one Brown, and were invited to come in. Alvarez at that time had a large bottle of wine and appeared to be inebriated. The defendant asked the agents why they were there. They told him they were there to pick up the marijuana Wagner had promised them. Brown then stated the marijuana was in the refrigerator. He walked to the refrigerator, opened the door, removed four plastic bags of marijuana, and offered them their choice of the bags. At this point the defendant interjected, saying, 'Take that one,' giving as a reason that it was the biggest. At the same time he indicated he would like to have marijuana cigarette before the two agents left. Brown then interfered and suggested the defendant leave also. During this occurrence there were other unidentified persons in the apartment. Alvarez left with the agents and they dropped him off at a pizza parlor.

The State by other evidence had earlier established that the substance in the bags was marijuana. At the close of the State's case Alvarez moved for a directed verdict. The court denied the motion.

The defendant took the stand in his own...