State v. Houp, 36668
| Decision Date | 24 November 1967 |
| Docket Number | No. 36668,36668 |
| Citation | 154 N.W.2d 465,182 Neb. 298 |
| Parties | STATE of Nebraska, Appellee, v. Jewel A. HOUP, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A verdict in a larceny case which does not determine the value of the property stolen will not support a sentence.
2. The trial court may set aside such a verdict on its own motion and order a new trial.
Edward F. Carter, Jr., Lincoln, for appellant.
Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
The defendant was charged with larceny of a grain semitrailer 'of the value of approximately $2,000.00.' The jury was instructed that in order to convict the defendant, the State must prove and the jury find that the trailer was of the approximate value of $2,000. On April 18, 1967, the jury returned a verdict finding the defendant 'guilty as charged in the information.' The jury did not 'ascertain and declare in its verdict the value of the property stolen' as required by section 29--2026.01, R.S.Supp., 1965.
On April 20, 1967, the defendant moved for an order discharging him from custody. This motion was overruled.
On April 28, 1967, the trial court, on its own motion, set aside the verdict and ordered that the defendant be tried again. The defendant then perfected an appeal to this court.
In a majority of states the verdict returned in this case would be sufficient. See Annotation, 79 A.L.R. 1180. However, the rule in this state has been that a verdict in a larceny case which does not determine the value of the property stolen will not support a sentence. Lee v. State, 103 Neb. 87, 170 N.W. 359. We have held that such a verdict confers no authority upon the trial court to enter a judgment or sentence. McCoy v. State, 22 Neb. 418, 35 N.W. 202.
The defendant's theory is that the trial court had no authority to set aside the verdict on its own motion and order a new trial; that the verdict had the effect of an acquittal; and that the defendant is entitled to be discharged because he cannot 'be twice put in jeopardy for the same offense.' Art. I, s. 12, Constitution of Nebraska.
In a similar case the Supreme Court of Iowa held that such a verdict is the equivalent of a mistrial, and that the trial court may set aside the verdict on its own motion and order a new trial. In State v. Redman, 17 Iowa 329, the court said: ...
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Houp v. State of Nebraska
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