State v. Sneff

• Decision Date: 23 November 1887
• Citation: 35 N.W. 219,22 Neb. 481
• Parties: STATE v. SNEFF.
• Court: Nebraska Supreme Court

22 Neb. 481

35 N.W. 219

STATE

v.SNEFF.

Supreme Court of Nebraska.

November 23, 1887.

Syllabus by the Court.

Where the proprietor of a building hears of an intended burglary to be committed by breaking into such building, and does not prevent it, but puts a force in the building to capture the burglar, and does not effect his capture, this does not affect the guilt of the burglar.

A person to whom one, intending to commit burglary, confides such intention, and procures such person to promise to act as accomplice, is a competent witness to prove the declarations and acts of the party committing the offense; the credibility of such witness being a question for the jury.

Where there is testimony from which the jury would be warranted in finding that a person indicted for burglary committed the offense, it is error for the court to direct the jury to acquit.

Exceptions from district court, Richardson county; BROADY, Judge.

Edwin Falloon, for plaintiff.

No appearance contra.

MAXWELL, C. J.

The defendant was indicted by the grand jury of Richardson county of the crime of burglary by breaking into the B. & M. Railroad station at Humboldt.

On the trial of the cause, the court instructed the jury as follows:

“ Gentlemen of the Jury: You are directed to return a verdict of acquittal in this cause, for the reason that the evidence is too clear that this man Bayliss was under the direction of the railroad company's agent, when he was pretending to be in collusion with this defendant, and going with him to commit this crime. He was under their direction to further the perpetration of the act, and present giving encouragement at the time it was done; which in law, I think, shows a consent on the part of the owner of the property. And there is not enough evidence to the contrary to submit the question of fact to the jury. The law being, if the owner of the property consent, it is not a crime for which he can put a party in the penitentiary; to make it a crime the act must be without the consent of the owner. Such methods are very useful, and generally used, for ferreting out past offenses, but cannot be used in this way. They may be used for the purpose of aiding in investigating and ascertaining the perpetrator of past offenses, but are not useful for the purpose of making new offenses, or the punishment of new offenses; for the policy of the law is to stop crime, and not to permit one to commit a crime when he otherwise would not do it.”

The district attorney excepted to the instruction. The jury rendered a verdict of acquittal, and the defendant was discharged. The prosecuting attorney, for the purpose of settling the law, brings the cause into this court on error.

One James Bayliss, called as a witness by the state, testified:

“Do you know the defendant, James Sneff? I saw him once or twice, I believe.

How long have you known him? Well, since last fall; I cannot just state the time.

Ever since last fall? Since he came to Humboldt; I don't just exactly know the month and day.

Were you in company with Sneff on the night of the thirteenth of November, 1886, in Humboldt, Nebraska? I cannot say about the date, but it was about that time.

What proposition did he make to you? He made a proposal that he would get into the depot, and get some money, if I would watch for him.

About what time was that? I could not swear to the day; I paid no attention to it.

Can you state the month? No, sir; I cannot tell.

Was it in 1886? Yes.

Was it in the fall? It was.

Was it in October or November? I could not say for certain.

What proposition did he make to you? Tell about it, and what he did. Well, the first time I ever spoke to the man he walked up to me as I was standing on that corner of the depot, and he asked to borrow two dollars of me, and told me he could make two hundred out of it between that time and tomorrow.I says ‘I have no money to loan; but if you are busted, and want work, I will tell you where you can get it.’ I told him he could get work of Feagle out in the country shucking corn; he said he would not work. He turned around and went into the depot, and I came back and walked along, and he was fumbling with the money-box. That was between 12 and 1 o'clock, day-time.

What other proposition did he make to you? He made the proposal, if I would watch, he would get some money out of the money-drawer in the station-house at Humboldt.

In this county and state? Yes.

What did you say to him? I told him I was not in that kind of business.

Who did you communicate this information to? As soon as he and I went up town I came back and told Aiken, the station agent at Humboldt.

Then what did you do? I went back up town. Aiken told me to aid and watch him, and, if he wanted to do it, to watch, and they would catch him in the act; and that between five and six, when the freight trains come down, he was to break in, and I was out on the road watching for him, and he and some more men were in the station house watching for him too. He said they didn't leave the waiting-room door open as they had done, and he would not break in. So he came back, and we went up town; he went to town, and I went home.

What time was that? Between six and seven o'clock in the evening, and I went over to a house in sight of the depot, and Cooper and some more men came over, and I says to them, I says, ‘Cooper, I am going to let that fellow go.’ ‘No,’ Cooper says, ‘you go up town, and, if he comes around you again, let him go ahead.’ I went up town, and he came to me in a few minutes, and spoke to me...