Stevens v. State

• Decision Date: 17 May 1886
• Citation: 28 N.W. 304,19 Neb. 647
• Parties: FRANK STEVENS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

28 N.W. 304

19 Neb. 647

FRANK STEVENS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 17, 1886

ERROR to the district court for Cass county. Tried below before MITCHELL, J.

REVERSED AND REMANDED.

S. P Vanatta, for plaintiff in error.

William Leese, Attorney General, for defendant in error.

OPINION

MAXWELL, CH. J.

The plaintiff was convicted of robbery at the December term 1885, of the district court of Cass county, and sentenced to imprisonment in the penitentiary for three years.

The first error relied upon is, that the evidence is not sufficient to warrant a verdict of guilty of the offense charged. For reasons stated in this opinion a new trial must be granted; therefore we will not comment upon the evidence but if the only error relied upon was that the verdict was against the weight of evidence, it would not be set aside. The first objection, therefore, is not well taken.

2. That the court permitted two witnesses, whose names were not endorsed on the information before the trial, to testify over the objection of the plaintiff.

Sec. 579 of the criminal code, provides that "all information shall be filed during term in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto and indorse the names of the witnesses known to him at the time of filing the same; and at such time before the trial of any case as the court may by rule or otherwise prescribe, he shall endorse the names of such other witnesses as shall then be known to him."

It will be seen that the prosecuting attorney is required to endorse on the information the names of all the witnesses known to him at the time of filing the information; and at such time before the trial as the court may by rule or otherwise prescribe he shall endorse thereon the names of such other witnesses as shall then be known to him. This is an entirely new provision, that no doubt was intended to apprise the accused in advance of the trial what witnesses would testify against him, and thus enable him to make preparation for the production of testimony in his own behalf, or if some of his witnesses are absent that he may be able to make a satisfactory showing for a continuance. The evident object is to avoid surprise to the accused. A number of the provisions of our criminal code are copied substantially from the statutes of Illinois, some sections verbatim. In Gardner v. People, 4 Ill. 83, 3 Scam. 83, and Gates v. People, 14 Ill. 433, it was held without a provision similar to section 579, that where the prosecution was aware of the existence and necessity of evidence before the commencement of the trial, it was usual to require him to give the accused notice of his intention to call such witnesses, so that the accused could apply for a continuance if he saw fit. There is no hardship in this rule, and it is clearly in furtherance of a fair trial, and being a positive provision of the statute it cannot be disregarded. The cases cited on behalf of the state from Kansas do not seem to be based on a statute similar to ours.

In State v. McKinney, 31 Kan. 570, 3 P. 356, it is said: "There is nothing in the rule of the court quoted in the record which substantially abridges this discretion (of the court), or which renders the action of court in this case subject to just exceptions." But there seems to be no discretion as to such endorsement given to our courts by the statute. The court therefore erred in permitting the prosecuting attorney to endorse the names of Patrick Kinney and William Duggan on the information during the progress of the trial, and then immediately call them as witnesses.

3. That the court erred in refusing to give the following instruction: "The defendant is charged with robbing one Oliver Scott of one overcoat and one watch. If you find from the evidence that at the time of the taking of said coat the watch was in the pocket of the coat, and that the defendant did not know it was there, but afterwards found it there, then he could not be charged with the intent to rob him of the watch, and the fact that the watch was afterwards found on the person of the defendant and in his possession, is not sufficient to warrant you in finding him guilty of the robbery of the watch." It will not be seriously contended that the above instruction states the law correctly. The party took the coat which contained a watch, and appropriated all the property to his own use. There was but one act, and the party committing it is liable for all the property taken by him. The instruction was therefore properly refused.

4. The plaintiff asked the court to give the following instruction, which was refused:

"The fact that the defendant took the property in question from the person, and that it was afterwards found in his possession, is not sufficient to convict him of robbery. You must further find from the evidence beyond all...