State v. Mays
| Decision Date | 22 May 1979 |
| Docket Number | No. 42127,42127 |
| Citation | 279 N.W.2d 146,203 Neb. 487 |
| Parties | STATE of Nebraska, Appellee, v. Roddess M. MAYS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Informations: Indictments. No information shall be deemed invalid for any defect or imperfection which does not prejudice the substantial rights of the defendant upon the merits.
2. Criminal Law: Informations: Bailment. An information which charges theft from the person in the actual possession of personal property, as bailee, is sufficient.
3. Criminal Law: Larceny: Statutes. For purposes of determining the value of the property alleged to have been stolen, the value of money or property stolen by a series of acts from the same person may be aggregated. § 28-506, R.R.S.1943.
4. Criminal Law: Larceny: Bailment. For purposes of determining the value of the property alleged to have been stolen, the State may aggregate the value of property entrusted to the victim, as bailee, by another person and of property in which the victim has complete ownership.
5. Criminal Law: Attorney at Law. To meet the test of effectiveness, trial counsel should perform at least as well as a lawyer with ordinary training and skill in the criminal law in his area, and he should conscientiously protect the interests of his client.
Dennis R. Keefe, of Naylor & Keefe, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen. and Chauncey C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant-appellant, Roddess M. Mays, was charged by information in the District Court of the crimes of grand larceny and of furnishing false information to a law enforcement officer. The jury returned a verdict of guilt on both counts. Defendant appeals. The factual context of this case is somewhat complicated.
On October 25, 1977, the defendant, Roddess M. Mays, who was separated from her husband Michael, reported an engagement-wedding ring as stolen to Officer Ginsberg of the McCook police department. The date of the alleged theft was noted as October 11, 1977. On November 19, 1977, Officer Ginsberg was given a green metal box by one Jeanette Hansen, a friend of the defendant, who testified that the box was given to her by the defendant. The contents of the box were inventoried at the police department. In addition to a ring, which appeared similar to the one which the defendant had reported as missing, the box also contained three other rings. Jeanette Hansen testified that all of the contents in the box were present at the time the rings were surrendered to her by the defendant. The defendant testified there were no rings other than her own rings in the box when it was given to the witness Hansen. At trial, there was evidence which would have allowed the jury to find that the three rings, other than that which is acknowledged to have belonged to the defendant, had been in the custody of one Chester Johnson, doing business as Johnson's Jewelry, earlier in the year 1977. Mr. Johnson positively identified one of the rings as that which had been left at the store for repair by John Jones. The ring belonged to Jones' wife. When Jones left it at the store it had a value of $1,500. When it was turned over to the police, and at the time of trial, the diamond stone was missing. Without the stone, its value, according to Johnson, was approximately $300. The other two rings were new and of a type that was sold by Johnson's Jewelry and at no other jewelry stores in the vicinity of McCook, Nebraska.
The defendant had worked for Johnson's Jewelry store from January to August 1977. Chester Johnson testified that it was the practice in his store to keep only one of a kind of a particular ring set in stock at any one time; that on the receipt of new merchandise, he would fill out a card with a description of the ring and when the ring was sold, he would transfer it to a "sold" file; that he was confident he should have had in stock such rings as were found in the green box but that the cards which would have been expected to be in the inventory file or the sold file were not present in his store. Johnson's testimony clearly permitted an inference that the rings had been surreptitiously removed from his store by Roddess M. Mays sometime during the period of her employment.
Defendant argues that the information filed by the State was fatally defective. The information filed in this case charged that: "Roddess M. Mays, late of the county aforesaid, did, between January 1, 1977, and August 31, 1977, in the County of Red Willow and State of Nebraska aforesaid, feloniously steal money, goods, or chattels of a value greater than $300.00, the personal property of Jack Jones and Johnson's Jewelry, contrary to Neb.R.R.S. 28-506; * * *." (Emphasis supplied.) The defendant's argument is two-pronged: First, that sections 29-1603 [203 Neb. 490] and 29-2002, R.R.S.1943, require that separate offenses be set out in separate counts of an information, while in this information, the defendant is, in effect, being charged with the theft of property from Jack Jones and the theft of property from Johnson's Jewelry. Second, that in any event, there is no showing that Johnson's Jewelry is an entity capable of owning property. As to the first point, the facts and information relied on by all parties to the action suggest that the stolen rings were owned by or were in the possession of (as bailee) Chester Johnson, doing business as Johnson's Jewelry. The addition of Jack Jones' name to the information as the owner who had surrendered possession of a dinner ring for repair to Johnson's Jewelry...
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State v. McGurk
...that proof of prejudice is required to succeed in establishing a claim of ineffective assistance of counsel. See, e.g., State v. Mays, 203 Neb. 487, 279 N.W.2d 146 (1979). Thus, in a pre-Strickland case, State v. Journey, 207 Neb. 717, 301 N.W.2d 82 (1981), the Supreme Court held that couns......
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State v. Garza
...the aggregate or total value of the property stolen to determine the grade of the theft offense under § 28-518. See, State v. Mays, 203 Neb. 487, 279 N.W.2d 146 (1979) (theft committed before effective date of the Nebraska Criminal Code; value of individual items stolen from an owner in a s......
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State v. Wiemer, A-94-052
...that proof of prejudice is required to succeed in establishing a claim of ineffective assistance of counsel. See, e.g., State v. Mays, 203 Neb. 487, 279 N.W.2d 146 (1979). Proof of a deficient performance must be accompanied by proof of prejudice to succeed in an ineffective assistance of c......
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State v. Otey, 81-768
...must show that he suffered prejudice in the defense of his case as a result of his attorney's actions or inactions. State v. Mays, 203 Neb. 487, 279 N.W.2d 146 (1979); State v. Lang, supra ; State v. Bartlett, 199 Neb. 471, 259 N.W.2d 917 As we said in State v. Meredith, 212 Neb. 109, 321 N......