State v. Sheldon
| Decision Date | 26 November 1965 |
| Docket Number | No. 36091,36091 |
| Parties | STATE of Nebraska, Appellee, v. Jerry SHELDON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In determining the sufficiency of the evidence to sustain the conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.
2. This court will not interfere with a verdict of guilty which is based on conflicting evidence unless the evidence is so lacking in probative force that it is insufficient as a matter of law to support a finding of guilt beyond a reasonable doubt.
3. The purpose of a preliminary hearing is to ascertain whether a crime has been committed and whether there is probable cause to believe that the accused committed it. It is not a trial of the person accused to determine his guilt or innocence, but is a procedural safeguard to prevent persons from being detained in custody without probable cause existing that the crime charged was committed by them.
4. Under the facts and circumstances in this case, the failure to appoint counsel for the defendant at the time of the preliminary hearing was not a denial of procedural due process or a violation of the defendant's constitutional right to the assistance of counsel.
5. The habitual criminal act does not create a new offense but provides a greater penalty for repetition of criminal conduct.
6. In the absence of the showing of an abuse of discretion, this court will not disturb a sentence imposed within the limits prescribed by the statute.
Edgar V. Thomas, David City, 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, BROWER, SMITH, and McCOWN, JJ.
Jerry Sheldon, the defendant, was convicted of burglary and possession of burglar's tools. His motion for new trial was overruled and he has appealed.
The amended information charged the defendant with burglarizing the Wachs Implement Company on November 26, 1964, and with possession of burglar's tools. In this case the burglary consisted of the willful, malicious, and forcible breaking and entering of a shop or office by the defendant with intent to steal property of any value. Section 28-532, R.R.S.1943. The possession of burglar's tools consisted of the defendant having in his possession a hammer, screwdriver, and punch with intent feloniously to break and enter any shop or other building containing valuable property. Section 28-534, R.R.S.1943.
The principal assignment of error relates to the sufficiency of the evidence to sustain the conviction. The record shows that on November 26, 1964, it was discovered that the Wachs Implement Company had been burglarized. Entry to the building had been gained by prying open a window on the alley. The safe had been broken into and approximately $60 in cash removed from it. The safe was broken into by knocking off the dial and breaking the locking mechanism so that the locking bars could be broken loose. An unsuccessful attempt had been made to break the locking mechanism with a punch, but some other tool had been used to break the locking mechanism.
At about 3 a. m. on November 26, 1964, James E. Newcome, the chief of police of David City, was patrolling the city. Jerome L. Meister, the sheriff's brother, was riding in the patrol car with Newcome. As they crossed the railroad tracks on Fifth Street, Meister saw two men standing on the tracks east of the crossing. Newcome turned the patrol car around and stopped on the east side of the street just north of the tracks. The defendant, who was standing on the tracks near an electric pole about 60 feet east of the crossing, bent over, dropped something, and threw his right arm to the right rear of his body. The other man, who was the defendant's brother Herbert, walked over to the patrol car. The defendant then walked up to the patrol car.
The defendant said that they had had car trouble and wanted help to get their car started. The defendant's car was located 1 block east and 6 or 8 blocks south of the crossing on Fifth Street. They had lost their ignition keys so the car was started by wiring past the ignition switch. Meister helped them start the car and followed them for several miles as they left David City.
Newcome radioed to Lincoln to check the identification on the defendant's car. Then Newcome and Meister returned to the area where they had first seen the defendant and his brother. A screwdriver and a punch were found where the defendant had been standing, and a large ball peen hammer was found approximately 43 feet northeast of where the defendant had been standing. There were places on the ground where the hammer had bounced as it was thrown.
The ball peen hammer, screwdriver, and punch, together with the dial and other parts of the safe from the Wachs Implement Company, were examined at the Federal Bureau of Investigation Laboratory at Washington, D. C. There was expert testimony that upon the dial and other parts of the safe there were impressions similar to those produced by hammer blows, and punch marks similar in size and shape to those made by the punch that was found where the defendant had been standing. There were marks upon a lock and plate taken from the safe which, upon microscopic examination, were found to be identical with those made by the screwdriver that was found where the defendant had been standing. There was further expert testimony that the safe at the Wachs Implement Company contained a form of gypsum as insulation. A small deposit of that type of gypsum was found on the punch. The entire blade of the screwdriver was covered with deposits of gypsum which microscopic examination showed was of the same color, texture, appearance, and composition as that used in the safe at the Wachs Implement Company.
The evidence which has been summarized was sufficient to permit the jury to find the defendant guilty of burglary and possession of burglary...
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...therefor * * * before a Justice of the peace or other examining magistrate or officer, * * *.' (Emphasis supplied.) In State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428, we said: 'The purpose of a preliminary hearing is to ascertain whether a crime has been committed and whether there is proba......
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