Wells v. State

• Decision Date: 16 June 1881
• Citation: 9 N.W. 552,11 Neb. 409
• Parties: THOMAS J. WELLS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

9 N.W. 552

11 Neb. 409

THOMAS J. WELLS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

June 16, 1881

ERROR to the district court of Fillmore county. Tried there before WEAVER, J., upon an indictment against Wells for horse-stealing. Verdict of guilty and that value of horse stolen was $ 21. Wells moved for a new trial, assigning as one ground of the same that the jury had rendered a verdict under a misapprehension of the legal effect of the same. This ground was supported by the joint affidavit of nine of the jury, who made oath that they did not believe Wells guilty of a felony, and did not and would not so find, and that a verdict so finding was not their verdict. This affidavit was made and filed immediately on the termination of the trial. The court overruled the motion and entered judgment on the verdict and sentenced the prisoner to six years confinement in the penitentiary.

REVERSED AND REMANDED.

James Laird and John Barsby, for plaintiff in error. The affidavit of the jurors was competent. Moffatt v. Bowman, 6 Gratt., 219. United States v. Reid, 12 Howard 361. Norris v. State, 3 Humphrey, 333. Cochran v. State, 7 Humphrey, 43. Farrer v. State, 2 Worden (Ohio), 54. Graham and Waterman on New Trials, 1433. Packard v. United States, 1 Green (Iowa), 255. State v. Hascall, 6 New Hampshire, 325. The chattel mortgage should been admitted in evidence. 2 Wharton Crim Law, 1818. Commonwealth v. Morse, 24 Mass. 217. Id v. Manly, 12 Pick. 173.

C. J. Dilworth, Attorney General, with J. W. Eller, for the State. Juror's affidavit not receivable to impeach their verdict. Stanton v. The State, 13 Ark. 317. People v. Hartung, 4 Park. Cr., 256. The mortgage, had it been introduced in evidence, would not have shown the title of the horse in Barsby. The title (proved by the state) to the horse was a legal title, and the mortgage being rejected was no prejudice to the rights of the prisoner. Ward v. People, 3 Hill (N. Y.), 396. People v. Sprick, 1 Parker Cr., 329. People v. Bennett, 36 N.Y. 117. Owen v. State, 6 Hump. (Tenn.), 330. Hill v. State, 1 Head (Tenn.), 454. Langford v. State, 8 Tex., 115. State v. Bardison, 75 N.C. 203. Blackburn v. State, 44 Tex. 450. Cox v. State, 43 Tex. 101. State v. Pettis, 63 Me. 124. Mosley v. State, 42 Tex. 78. Petre v. State, 35 N.J.L. 64. State v. Mullen, 30 Iowa 203.

OPINION

LAKE, J.

There was no error in refusing to set aside the verdict on the affidavit of the nine jurors of the panel that found it. They do not say that it fails to express their finding precisely upon the matter entrusted to their decision, viz., the larceny of the horse; but simply that the grade of the offense, and its punishment, are greater than they had supposed; so much so indeed, that had they been advised of it, they would not have found him guilty.

With the punishment of the accused the jury had nothing to do. That was a matter exclusively within the province of the judge, within certain statutory bounds. Their duty was simply to pass upon the facts charged in the indictment, and whether the punishment to follow in case of conviction was in the penitentiary or only in the county jail, was a matter that could have no legitimate bearing upon the question of guilty or not guilty, which they were to answer. The rules of evidence and all the presumptions of law were the same, whether the punishment was more or less severe.

The purport of the affidavit is, that these jurors believed the prisoner stole the horse, but that they supposed the offense to amount only to petit larceny if the value of the animal stolen were returned by them as being less than thirty-five dollars, which they did without a particle of evidence to support them in it. Indeed, to use their own language "they did not intend to convict the said Thomas J. Wells of a felony, but that they intended to convict him of petit larceny only," and that they "were of the opinion that the said defendant was not guilty of a greater crime than petit larceny." Their mistake, therefore, as before stated, was not in any act of their own--not in any expression of the verdict--but in their supposition that in horse-stealing the same distinction of grand and petit larceny exists as in the theft of other species of property. But no such distinction is known to our law, and the character of the crime is the same, whether the value of the animal be five hundred or only twenty dollars. No case has been cited, and we think none can be found in which a...