Wax v. State
| Decision Date | 05 December 1894 |
| Citation | 61 N.W. 117,43 Neb. 18 |
| Parties | WAX v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A bill of exceptions must be certified by the clerk of the trial court as being a part of the record in said court, or as being the original bill of exceptions in the cause, in order that the matters therein may be considered by this court.
2. In a prosecution for obtaining money under false pretenses, it is the duty of the jury, in case of a conviction, to find the value of the money feloniously obtained. But a verdict of guilty will not be set aside because it fixes the value of the money at a few dollars more than is established by the evidence, where the uncontradicted proofs show that the sum procured from the complaining witness exceeded in value $35.
3. To authorize a conviction under an information charging the obtaining of money by false pretenses, the defendant's false representations need not have been the sole moving cause that induced the person defrauded to part with his money, but it is sufficient if it appear that they were one of the causes of inducement, and that he would not have done so without them.
Error to district court, Pierce county; Allen, Judge.
Henry Wax was convicted of obtaining money under false pretenses, and brings error. Affirmed.C. C. Jones, G. T. Kelley, and H. F. Barnhart, for plaintiff in error.
W. S. Summers, Deputy and Acting Atty. Gen., for the State.
The plaintiff in error was tried and convicted in the court below of obtaining the sum of $536 from the Pierce State Bank under false pretenses, and was sentenced to the penitentiary for the period of two years.
The first proposition discussed in the briefs is that the verdict is contrary to the evidence adduced on the trial of the case. This point we might well refuse to notice, since the same is not raised by the petition in error, although the sufficiency of the evidence to sustain a conviction was properly brought to the attention of the trial court by the motion for a new trial filed by the prisoner. True it is that the overruling of the motion for a new trial is assigned for error in the petition in error, but this assignment is too indefinite to call for a review of the evidence, since such motion sets up 14 separate and distinct grounds for the setting aside of the verdict, each of which, excepting three, being based either upon the giving and refusing of instructions or the decisions of the court upon the admission and exclusion of testimony. The rule applicable to this state of the record was announced by this court in Wiseman v. Ziegler, 60 N. W. 320, as follows: “An assignment of error for the denial of a motion for a new trial is bad if it fails to specify to which of the several points made by the motion the assignment applies.” Again, there is another reason why we might properly decline to consider the evidence, and that is that it is not before us in an authenticated bill of exceptions. Attached to the transcript of the proceedings in the district court is what purports to be a bill of exceptions, containing the testimony taken on the trial of the cause, but the bill is not authenticated by the certificate of the clerk of the district court showing that it is either the original bill of exceptions which was settled and allowed in the case, or a copy thereof. Such a certificate is indispensably necessary. Aultman v. Patterson, 14 Neb. 57, 14 N. W. 804;Hogan v. O'Niel, 17 Neb. 641, 24 N. W. 213;Flynn v. Jordan, 17 Neb. 518, 23 N. W. 519.
No objection having been made to the bill of exceptions, by motion to quash or otherwise, we have concluded to consider the testimony therein contained, to see whether it supports the verdict. It appears that on the 23d day of March, 1891, the plaintiff in error borrowed from the Pierce State Bank the sum of $536, and secured the payment thereof by executing a chattel mortgage upon a number of horses, cows, and other personal property. The chattel mortgage, immediately following the description of the property therein given, contains the statement that “the above-described chattels are now in my possession, and owned by me, and free from all incumbrances in all respects.” It was proven by at least four witnesses called by the state that the plaintiff in error, at and prior to the obtaining of the loan in question, stated to C. A. Reimers and W. A. Spencer, the president and cashier, respectively, of the Pierce State Bank, that he owned the property which he pointed out to them, and which was subsequently described in the mortgage. The officers of the bank heretofore mentioned each testified that the above...
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State v. Bohannon, 38066
...not been committed. However, the pretense need not be the sole moving cause that induced the owner to part with his property. Wax v. State, 43 Neb. 18, 61 N.W. 117. To the extent that the welfare department had knowledge of the defendant's ownership of property omitted from the asset statem......
- State v. Kulbe