State v. Nelson

Decision Date30 June 1967
Docket NumberNo. 36516,36516
PartiesSTATE of Nebraska, Appellee, v. Lyle Edgar NELSON, Appellant,
CourtNebraska Supreme Court

Syllabus by the Court

1. Objections to the mode of selecting petit jurors must be made before the trial to be of any avail.

2. In a prosecution for cattle stealing, it is not necessary to allege or prove the value of the cattle stolen.

3. A variance between the allegations in the information and the evidence offered in proof thereof is not fatal unless it is material to the merits of the case or such as is prejudicial to the defendant.

4. Ownership of chattels may, in an indictment for their theft, be laid either in the owner, or in the person who at the time of the theft was in the actual peaceable possession of them, although such person may have no other property therein than the right of possession as against the thief.

5. In prosecutions for larceny, nonconsent of the owner of the property alleged to have been stolen may, in a proper case, be inferred from circumstances.

6. Evidence is relevant which shows that the accused has threatened or assaulted a witness, has endeavored to prevail on him to abscond, has procured his absence, has endeavored to induce him to testify falsely, or has concealed the whereabouts of such witness from the prosecution; and such conduct on the part of an accused person is an incriminating circumstance to be weighed by the jury in determining the question of his guilt.

7. The mere fact that a witness in a criminal prosecution is a regular public law enforcement officer does not entitle an accused to an instruction that the jury, in weighing his testimony, should exercise greater care than in weighing the testimony of other witnesses.

8. In a criminal action, an instruction which informs the jurors that they have nothing to do with the punishment of the defendant and that they have no right to take into consideration what punishment he might or might not receive, in event of his conviction, is proper in the cases where the punishment is left to the trial court.

9. Absence of any direct, incriminatory evidence is ordinarily made the test of the obligation of the trial court to instruct as to the probative value and manner of considering circumstantial evidence in a criminal case, and, if there is direct incriminatory evidence of the principal facts essential to guilt, the failure to instruct in this regard is not error.

Charles A. Fisher, Charles F. Fisher, Chadron, for appellant.

Clarence A. H. Meyer, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.

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

NEWTON, Justice.

This is an action wherein the State prosecuted Lyle Edgar Nelson, appellant herein, on a charge of cattle stealing. Trial was had to a jury and a verdict of guilty rendered. The evidence is to the effect that one Margaret Molzahn, who resided in Hay Springs, Nebraska, was the owner of a ranch in Sheridan County on which, she testified, a herd of black angus cattle owned by her was maintained, and that Arthur Klemm resided on the ranch and acted as the foreman or supervisor of the ranch and livestock. Arthur Klemm testified that he was the owner of the cattle although they were listed for taxation in the name of the ranch owner. The fact that Arthur Klemm was in sole possession of the cattle at the time of the alleged theft was undisputed however. Mr. Klemm was accustomed to checking the cattle every 2 days and in the first part of January discovered that 25 out of the 76 head of cattle on the ranch had disappeared. He searched the neighborhood for the missing cattle, but was unable to locate them and then reported the fact that some of the cattle were missing to the Sheridan County sheriff. Klemm stated that out of the 76 head, all but 7 cows and 2 bulls had been raised by him. He had made it a practice to tame and make pets of the heifers and cows, had named each of them, many of them would come when he called them, and could be fed by hand. This witness further stated that some of the cattle were not branded and that on March 2 and March 10, 1966, he made trips to the Cameron Fanning ranch at Vetal, South Dakota, at which time he was able to call 5 cows, varying in age from 2 to 6 years, from a larger herd and feed them by hand. He referred to these cows by the individual names he had given them. Other persons who accompanied him on the trip also attempted to approach the five cows, but could not get near any of them. Mr. Klemm testified that these were five of his missing cows.

The evidence further shows that these cows were purchased by Ronald J. Fanning, son of Cameron Fanning, at the Martin, South Dakota, sale barn on January 15, 1966; they then bore the lazy B mill iron brand on the left hip, and the brands were fresh. This brand was owned by B. J. (or Betty Joe) Schmitz Nelson, wife of the defendant, and a bill of sale was executed by her to the purchaser. Mr. Fanning made out two checks in payment for the cattle, one to the defendant for $1,928 and one to a man by the name of Bill Porch for $447, the checks being thus made in accordance with the directions of the defendant. The defendant's evidence indicated that the defendant had sold some horses belonging to the defendant in the name of Bill Porch but no explanation was offered regarding the consideration for the $447 check. Ernest Bailey, investigator for the Nebraska Brand Committee, was called by the State and testified that cattle were usually branded as calves, it being unusual to brand them at a later date. He also stated that he was present at the Fanning ranch on March 2 and 10, 1966, when Mr. Klemm inspected and identified the cattle and, in his judgment, the brands were fresh and just starting to 'peel' when he saw them in March; and that it ordinarily required, during cold weather, a period of from 5 to 7 weeks for brands to peel.

The Molzahn ranch occupied by the witness Klemm in Sheridan County lies adjacent to what was referred to in the evidence as the Albert Gehrt ranch, northwest of Rushville, Nebraska. There were some corrals in the pasture at the Gehrt place located about a half mile south from the Molzahn ranch buildings. One Frank Ogle was called as a witness by the State and testified that he had worked for the defendant at the defendant's ranch in South Dakota commencing a little before Thanksgiving 1965. His evidence is, in substance, as follows: On Sunday, January 2, 1966, he rode with the defendant in defendant's 1 1/2-ton, red, Chevy truck to Rushville, Nebraska, where defendant got a Chevrolet pickup owned by him from the Chevrolet garage where it had been repaired. Defendant, Ogle, and one Ernie Abold then drove out in the country northwest of Rushville in Abold's car where they looked at some horses and black cattle. They returned to Rushville; Ogle drove the pickup truck to defendant's ranch, and defendant drove the truck home. About 11 p.m. that evening, defendant woke Ogle and took him on a trip in the truck. It was a clear, moonlight night. They drove west to Pine Ridge, South Dakota, turned south through White Clay, and continued on for several miles in a southwesterly direction. Defendant stated that he had lost the tailgate of his truck and wanted to find it. The tailgate was found on the shoulder of a county road and they continued on for about 2 miles where defendant turned off onto a pasture trail. Defendant turned off the truck lights and drove approximately another 2 miles through the pasture to the corrals on the Albert Gehrt place. There, approximately 10 head of black cows were loaded by defendant and the witness; they retraced the trail through the pasture to the county road where the lights were turned on, then drove to the defendant's ranch and unloaded the cattle. A couple of days later, the cattle were branded with the lazy B mill iron brand on the left hip and were then taken to the Martin, South Dakota, sale ring and unloaded. After the cattle were sold, the witness and defendant returned to the defendant's ranch and a couple of days later, the witness Ogle went into Gordon, Nebraska. The defendant found him in a hotel room and told him: 'I think I just as well get you out of here,' drove him to Alliance, Nebraska, and gave him $20 and a bus ticket to Denver. Ogle stayed in Alliance and cashed in the bus ticket. On New Year's Day, Ogle had driven with the defendant to Mobridge, South Dakota, to take some horses to the sale ring there. The horses were sold that evening and they then returned to the defendant's ranch, arriving there on the morning of January 2, 1966. The witness further stated that later in the spring, he gave directions to the Sheridan County sheriff and to Ernest Bailey to enable them to find the corrals where the cattle had been loaded and rode with them to the corrals on the Gehrt place.

Defendant's evidence was, in substance, as follows: His wife testified that she had left November 17, 1965, to visit her parents in Montana and did not return until December 23 at which time she observed the 14 black cows on the place which, she said, were taken to the Martin, South Dakota, sale barn on December 24, 1965, and bore her brand. She stated it it was on December 31 when she took her husband and the witness Ogle to Rushville and they picked up from the Chevrolet garage both the 1 1/2-ton truck and the pickup. Eugene American Horse testified that he...

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