State v. Maxwell, 39618
| Decision Date | 22 May 1975 |
| Docket Number | No. 39618,39618 |
| Citation | 193 Neb. 807,229 N.W.2d 195 |
| Parties | STATE of Nebraska, Appellee, v. Thomas Henry MAXWELL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Section 25--1111, R.R.S.1943, requires that requested instructions must be submitted in writing.
2. It is not proper to give an instruction on a lesser offense unless such an instruction is applicable and authorized by the evidence.
3. In the absence of a proper request, the trial court is not required to instruct in regard to lesser included offenses.
4. It is only when there is a total want of proof to support a material allegation of the information, or where the testimony in a criminal case is of so weak or doubtful a character that a conviction based thereon cannot be sustained, that a court will be justified in directing a verdict of not guilty.
Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
The defendant was convicted of burglary. He assigns as error the denial of a continuance, refusal of an orally requested instruction, and the overruling of a motion for a directed verdict. We affirm the judgment of the District Court.
As the jury was about to be impaneled the State was permitted to endorse the name of a handwriting expert on the information. The court assured the defendant that his attorney would have an opportunity before commencement of the trial, but after the jury was impaneled, to question the new witness. 'A motion for continuance is addressed to the sound discretion of the court, and, in the absence of an abuse of discretion, its denial is not error.' State v. Craig, 189 Neb. 461, 203 N.W.2d 158. The new witness identified the signature on a pawnshop card as that of the defendant. That the signature was his was admitted by the defendant. It is evident the court did not abuse its discretion and that the defendant was not prejudiced.
At the conclusion of the trial the defendant orally requested that an instruction be given on the crime of receiving stolen property. Whether or not this is an included offense need not be determined. A review of the record discloses that there never was definite identification of any of the property taken in the burglary and the defendant denied he was guilty of receiving stolen property. Neither the information nor the evidence sustained such an instruction. Section 25--1111, R.R.S.1943, requires that requested instructions must be submitted in writing. This was not done. It is not proper to give an instruction on a lesser offense unless...
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State v. Smith
...156 (1988); State v. Sotelo, 197 Neb. 334, 248 N.W.2d 767 (1977); State v. Bell, 194 Neb. 554, 233 N.W.2d 920 (1975); State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195 (1975); State v. Warner, 187 Neb. 335, 190 N.W.2d 786 (1971); State v. Caha, 184 Neb. 70, 165 N.W.2d 362 (1969); Guerin v. Sta......
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State v. Bell, 39943
...'In the absence of a proper request, the trial court is not required to instruct in regard to lesser included offenses.' State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195. See, also, State v. Warner, 187 Neb. 335, 190 N.W.2d The second assignment of error presents a proposition on which the au......
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State v. Sotelo, 40796
...the absence of a proper request, the trial court is not required to instruct in regard to lesser included offenses. State v. Maxwell (1975), 193 Neb. 807, 229 N.W.2d 195. The trial court explained the alternatives to the defendant, and the defendant elected to stand on his instruction. If t......
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State v. Hegwood, 42028
...writing. The case does not so hold. In that case there was no request for an instruction at all. The State further cites State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195, for the same proposition. The charge in that case was burglary. The defendant complained in this court of the failure of t......