Weinecke v. State

• Decision Date: 17 February 1892
• Citation: 51 N.W. 307,34 Neb. 14
• Parties: WEINECKE v. STATE.
• Court: Nebraska Supreme Court

34 Neb. 14

51 N.W. 307

WEINECKE

v.STATE.

Supreme Court of Nebraska.

Feb. 17, 1892.

Syllabus by the Court.

1. Held, that the evidence justifies the finding of the jury that the defendant was guilty of willfully and maliciously placing an obstruction upon the railroad track, as alleged in the information.

2. When the crime charged is fully established by competent testimony, the free and voluntary confession of the defendant may be proven for the purpose of connecting him with the offense.

3. The information contains two counts, each charging a separate offense. There was a verdict of guilty under one count and an acquittal of the other, though the evidence would have justified a conviction of both offenses charged. Held, that the findings are not inconsistent with each other, and that the accused was not prejudiced by the findings returned in his favor.

4. The venue of an offense may be proven like any other fact in a criminal case. It need not be established by direct testimony, nor in the words of the information, but if, from the facts in evidence, the only rational conclusion which can be drawn is that the crime was committed in the county alleged, the proof is sufficient.

5. There is no variance between the allegations of the second count of the information and the evidence introduced in support thereof.

6. When the sentence imposed in a criminal case is within the limits fixed by statute, it will not be disturbed unless it appears that there has been an abuse of discretion.

Error to district court, Merrick county; POST, Judge.

One Weinecke was convicted of maliciously and willfully obstructing a railroad track, and brings error. Affirmed.A. Ewing, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., and W. T. Thompson, for the State.

NORVAL, J.

The information upon which the plaintiff in error was tried contains two counts. In the first count the accused is charged with willfully and maliciously displacing and removing the spikes and bolts from one of the rails of the track of the main line of the Union Pacific Railroad. By the second count he is charged with willfully and maliciously placing an obstruction upon and across the track of said railroad. Upon the trial the plaintiff in error was acquitted upon the first count, and a verdict of guilty was returned upon the second count, of the information. A motion for a new trial was filed, alleging the following grounds: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) error of law occurring at the trial. The motion was denied, and thereupon the defendant was sentenced to imprisonment in the penitentiary for five years.

The prosecution was brought under section 93 of the Criminal Code, which provides that “every person who shall willfully and maliciously remove, break, displace, throw down, destroy, or in any manner injure any iron, wooden, or other rail, or any branches or branch ways, or any part of the tracks, or any bridge, viaduct, culvert, trestle-work, embankment, parapet, or other fixture, or any part thereof, attached to or connected with such tracks of any railroad in this state now in operation, or which shall hereinafter be put in operation, or who shall willfully and maliciously place any obstructions upon the rail or rails, track or tracks, of any such railroad, shall be punished by imprisonment in the penitentiary not less than one year nor more than twenty years,” etc.

Neither in the petition in error nor the brief filed is any complaint made of the instructions or of any ruling of the trial court in the admission and rejection of testimony, but the principal ground urged for reversal is that the verdict is not justified by the evidence. By undisputed testimony it is shown that near 12 o'clock of the night of August 24, 1890, and a short distance from the town of Chapman, in Merrick county, all the spikes and bolts were removed from one of the rails, which formed a part of the main track of the railroad then owned and operated by the Union Pacific Railway Company, and a steel claw-bar, about six feet long and two inches thick, was placed in such a position upon one of the rails of the track and against a tie as would most likely have derailed a train had one attempted to pass. The testimony also shows that the tool-house of the company at Chapman station was broken open, and the claw-bar in question taken therefrom. Shortly after 12 o'clock of the night referred to, the defendant went in to the office of the railway company at Chapman, and informed the night operator that the track had been tampered with. The sectionmen were at once notified, who soon made the necessary repairs. At the request of the operator, the defendant accompanied the sectionmen, and showed them the place. He returned with the men to Chapman, where shortly thereafter he was arrested upon the charge for which he was subsequently tried and convicted. Soon after the defendant's arrest he was placed in jail at Grand Island, where he occupied a cell with one John Mulroy, who was detained therein as a witness for the state in a criminal case pending in Hall county.

Upon the trial of the defendant John Mulroy was called as a witness for the state, who testified on direct examination as follows: “Question. Did you ever see the defendant before? Answer. Yes, sir. Q. Where did you see him? A. In Grand Island. Q. In the jail at Grand Island? A. Yes, sir. Q. You were there detained as a witness? A. Yes, sir. Q. When did you see him? A. The morning after he done this act. Q. Do you know the time he was brought to jail there,--about the time? A. Yes, sir; it was Monday morning about five o'clock. Q. On that day, did you hear him say, or anything said, in regard to what he was there for? A. No, sir; not right then. Q. When did you? A. The next day after. Q. What did you hear? A. The next night he was crying in bed. Q. Whether you knew what he was there for? A. Yes, sir. He asked me what I was in for, and I told him; and I asked what he was in for, and he told me. Q. What did he say? A. He said on account of the train wreck. He tried to wreck a train down here, and that was what they had him for. Q. Did he sleep with you. A. Yes, sir; in the same bed with me. Q. Did you, after that time, hear him say anything about the matter? A. Yes, sir. That night, when I went to bed, he was laying in bed, and he was crying, and I asked what was the matter. He said he was sorry; and I says, ‘Sorry for what?’ He said, ‘Sorry for doing it;’ and I said, ‘Did you do it;’ and he said, ‘Yes;’ and I said, ‘What did you do it for?’ and he said he thought he could make some money; and I got up and told the watchman outside; and then I went up and told the prisoners in the jail,--told them all.” A rigid cross-examination of the witness failed to break down or impair his testimony given in chief, but shows that he was a disinterested witness, and had no bias or prejudice against the accused.

Fred G. Schaffer, the deputy-sheriff of Merrick county, testified, in effect, that a short time before the trial the defendant stated to the witness that he displaced the rail, and placed the obstruction upon the track.

The defendant testified that he started on foot from Grand Island, between 3 and 4 o'clock in the afternoon of August 24th, following the railroad track to a point about half a mile west of Chapman. It being about dusk, and having no money to pay for lodging, he went into a cornfield about three rods from the railroad, made a bed upon the ground with his overcoat and some corn-stalks, where he lay down, and went to sleep. We quote from the record his version of what took place: “I commenced to sleep, and after I woke up again I heard a train come; and I woke up again and laid down a while then; and I woke up and heard somebody pounding on the iron; and I went up and looked at it, and I thought it was the sectionmen, and I saw two men there working; and I went back again, and laid down and thought over it, that I didn't see any lights; and I went out again and saw what they were doing there; and I went to the railroad crossing, a little further down there, and them fellows seen me, and hallooed to me to stay there or come up to them; and I didn't go, and they commenced to swear and come up to me; and I went down the track, and soon as I commenced to go down they commenced to run after me, and I run, too; and afterwards they shot at me; and I went to the depot, and told the night operator what I saw there.” On cross-examination the defendant testified, among other things, as follows: “Question. How long do you think you had been asleep before you woke up? Answer. I couldn't tell how long it was. Q. What woke you up? A. First I heard a train coming by. Q. Did the train go by? A. Yes, sir. Q. How long after the train went by was it before you heard these men at work? A. Must be a half an hour, or something like that. Q. And you was awake all that time? A. I was laying down, kind of dozing. Q. You wasn't fast asleep? A. No, sir. Q. And you was kind of a wake for about a half an hour? A. Yes, sir. Q. And then you heard what? A. Somebody working on the railroad with irons; somebody pounding. Q. Did you hear any voices? A. Yes, sir; I heard some one talk. Q. Could you understand what they said,--whether they were talking in English or some other language? A. No, sir; I could not tell. Q. How long did you hear them pound this way before you got up and went towards them? A. I looked up, and went up there. Q. Did you...