Wallace v. State
| Decision Date | 08 April 1912 |
| Docket Number | 17,452 |
| Citation | 135 N.W. 549,91 Neb. 158 |
| Parties | ROBERT J. WALLACE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Buffalo county: BRUNO O. HOSTETLER JUDGE. Reversed.
REVERSED.
H. M Sinclair and W. D. Oldham, for plaintiff in error.
Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.
At the December, 1911, term of the district court for Buffalo county Robert J. Wallace, hereafter called the defendant, was convicted of the crime of hog stealing, and was sentenced to the penitentiary for a period of not less than one year, nor more than five years, "as shall hereafter be determined by the prison board." To reverse that judgment the defendant has prosecuted error.
His assignments are: First, the verdict of the jury is not sustained by the evidence; second, the sentence of the court is contrary to law; third, the sentence of the court by reason of its being indefinite in time of duration is a violation of the constitution of this state and is unauthorized by law, especially that part of the judgment of the court which leaves the "prison board" to determine the duration of the imprisonment is obnoxious to the constitution of this state; fourth, certain errors in the instructions of the court given by it on its own motion. The assignments will be considered in the order stated.
1. As to the sufficiency of the evidence to sustain the verdict, it may be said that the hogs alleged to have been stolen, and which were found in the defendant's possession, were identified and shown to have been the property of the complaining witness beyond a reasonable doubt. However, it is strenuously argued that the evidence fails to show any felonious intent on the part of the defendant in taking them into his possession. On the trial the defendant testified in his own behalf, in substance, that he resided about 5 1/2 or 6 miles northeast of the village of Amherst that his business was farming; that his father, on the 12th day of August, 1911, lived in the west part of Amherst; that his father had some hogs, as he expressed it, "I expect between 40 and 45, big and little;" that he went to Amherst on that day, the 12th of August, and arrived there about half past 2 o'clock; went right to his father's place and unhitched his horses and put them in the stable; went into the house and got dinner; that he wanted to get some shelled corn of his father; that he put the sacks in the wagon and then went over to town; that he met his father in town, about 6 o'clock in the afternoon; that they visited around town a while before they went home; that they got home about 6 o'clock; that after they got home his father called his attention to some shoats there. He said they must be the Graham hogs; he was expecting the Graham hogs, and he says you can take them if you still want hogs, as he had bought them from my brother George. He said the hogs were large enough and thrifty enough to be worth $ 4 apiece, and he would take them at that price and he gave me his chance. I got the sacks ready because I was going to lodge--got the sacks ready; when I got back from lodge it would be too late to find them, and I got the sacks ready and I pulled the door down on the pig pen and closed the pigs in. The hogs were in the yard. We looked at them. I got the sacks ready and put the pigs in so they would not get away, for I had agreed to take the pigs if the price was all right. Then I went in to supper. We got our supper, and by that time it was 8 o'clock. As I was one of the officers of the lodge I wanted to be there just about 8 o'clock. The lodge adjourned about 25 minutes past 10. When I got to my father's house I loaded the hogs right about then. I put the hogs in the sacks and went in and had lunch, hitched up and went home. I was thinking it was the Graham pigs. The defendant's father testified in his behalf. He stated that he had 50 or 60 hogs in the lot on August 12, nine old hogs and the rest spring pigs. He said in substance: I told Robert there were some pigs there running through the yard that George delivered, and he was talking about the hogs and he took them home, and we would settle on the price. I think they were George Wallace's hogs. I did not know what time Robert got the hogs, did not help him. Did not see Patterson that night. On cross-examination by the county attorney the witness made some contradictory statements, but none of them were so inconsistent as to destroy his evidence in chief. The defendant further testified that after they came home his father called his attention to the shoats. He said they must be the Graham hogs. He said he had bought them from George. He said the hogs were large enough and thrifty enough to be worth $ 4 apiece, and he would take them at that price, and he gave me his chance; had the conversation with father when we came into the yard. The hogs were running around in the yard; he said he supposed that was the Graham hogs; don't recollect that one was a cripple.
Patterson, the complaining witness, testified that he saw Robert Wallace and his father, James, on August 12, driving two red hogs out of the cornfield at James' place near Amherst; that he tried to count his hogs that night, but failed; that he counted them in the morning, they were seven short; that he found the hogs at Robert Wallace's place; five had their tails cut off. He (Robert) said he bought the hogs of his father; afterwards he said his father told him there were some hogs, and he could take them; that he took them between 12 and 2 o'clock that night. The county attorney asked Robert if his father gave him the hogs, and he said yes; that Jim Wallace had about 25 hogs, all black, except four red, but they were not like "mine." Wagner, the constable, testified that the defendant said he had bought the hogs, and then that he and his father bought them together. Witness Higgins testified that defendant said he bought them. He told Patterson that if he said they were his hogs they might be. He was willing to turn them over because he did not know where his father got them. When asked how he came into possession of the hogs belonging to Patterson, he said his father gave them to him. George Wallace, who testified for the defendant, stated that he had traded with Graham for four shoats; that they were to be delivered on the day the hogs were taken, but were not delivered until about a week later. It appears that the Graham hogs, when delivered, were black, and there were only four of them, while the hogs in question were red.
The state contends that, because of the contradictory statements made by the defendant and his witnesses, the jury might have reasonably concluded that, when the hogs were taken, defendant and his father intended to deprive the complaining witness of his property, and that Robert expected to convert them to his own use. We are of opinion, however, that the evidence is insufficient to sustain the verdict. In order to convict the defendant of the crime of larceny, as charged in the information, the state was required to prove, beyond a reasonable doubt, that defendant participated in the larcenous taking of the hogs in question from the complaining witness. We think the evidence was insufficient to establish that fact beyond a reasonable doubt. Having reached this conclusion, we could well decline to consider the other questions argued by counsel for the defendant; but, in view of the fact that they have been ably presented, we deem it best to determine them.
2. It is next contended that the act of the legislature declaring hog stealing a felony, without regard to value, is repugnant to the constitution. The act in question appears in the criminal code as section 117b. It provides: "If any person or persons shall steal any sow, barrow, boar or pig of any value, * * * every such person so offending shall be imprisoned in the penitentiary not more than five nor less than one year and shall pay the cost of the prosecution." We have omitted the provisions of the section relating to receiving such property, because that question is not presented by the record. It is argued that this classification has nothing for its basis; that there is no good reason why the theft of a hog worth one cent should be made a felony, and a theft of $ 34.99 of money be a misdemeanor only. This argument was disposed of by the opinion in Granger v. State, 52 Neb. 352, 72 N.W. 474. That action involved the constitutionality...
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