Wheeler v. State
| Decision Date | 12 July 1907 |
| Docket Number | 15,024 |
| Citation | 113 N.W. 253,79 Neb. 491 |
| Parties | FRED WHEELER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Clay county: LESLIE G. HURD, JUDGE. Affirmed.
AFFIRMED.
T. H Matters, Charles J. Greene and Ralph W. Breckenridge, for plaintiff in error.
W. T Thompson, Attorney General, and Grant G. Martin, contra.
Fred Wheeler, hereafter called the defendant, was convicted of the crime of burglary, and has brought the case here for review.
It is contended by his counsel that the information should have been quashed because the defendant never had a preliminary examination on the charge contained therein. It appears that the defendant, and one Harry Le Baron, were jointly charged in the county court of Clay county, with breaking and entering the store of Martin & Haggard, in the village of Trumbull, with intent to steal. They were arrested and brought before the court, and on the 3d day of October, 1906, Le Baron waived preliminary examination, and was bound over to the district court. The hearing of the defendant was continued until the 18th day of that month, at which time testimony was taken both for the prosecution and the defense; and the county judge, as an examining magistrate, found there was probable cause to believe that the offense charged had been committed by the defendant. Thereafter, and in due season, an information was filed in the district court for said county charging said parties with the same offense. A motion to quash was thereupon filed by the defendant, based on the ground that he had never had a preliminary examination, which motion was overruled. The defendant entered a plea of not guilty, and was thereafter tried and convicted, as above stated. The argument is that because the complaint filed before the magistrate did not contain the word "value," or, in other words, allege that the defendant broke and entered the building with intent to steal goods and property of value, it was void, and failed to state any offense punishable under the laws of this state; that because the information did contain the word "value," a different charge was preferred against the defendant in the district court from that contained in the complaint. Breaking and entering a building, with intent to steal property therefrom, constitutes the crime of burglary. By the provisions of section 48 of the criminal code it is made a felony for a person to break and enter a storeroom, with intent to steal property of any value. While the statute says property "of any value," we do not regard the words "of value" as being necessary ingredients of the charge. The allegation in the complaint was that the defendant did break and enter, with intent to burglariously steal, take and carry away the goods and property of the said Martin & Haggard. It has been held by the court of last resort in the state whose criminal code we adopted that if the allegation is of stealing goods and chattels, or goods and merchandise, it is not necessary to allege their value. Spencer v. State, 13 Ohio 401. Again, the record clearly shows that the information was based upon the same transaction for which the defendant had a preliminary examination. In Hockenberger v. State, 49 Neb. 706, 68 N.W. 1037, it was said, if the charge in the complaint is substantially the same as in the information, the plea of variance is unavailing. Where a preliminary examination was held upon a complaint charging the crime of burglary, with intent to steal, and the information filed by the county attorney in the district court charged the same offense, but with intent to commit a rape, it was held that the same crime, to wit, burglary, was described both in the complaint and in the information. Alderman v. State, 24 Neb. 97, 38 N.W. 36. So it would seem clear that the district court was right in refusing to quash the information.
Defendant's second contention is that the court erred in admitting and excluding certain evidence. It appears that Martin, one of the owners of the store in question, had paid one William Rigg $ 10 in procuring his affidavit as to what he knew about who had broken and entered the store, which fact was brought out on cross-examination, and counsels' argument is directed, with particular force, to the following question and answer of the redirect examination: " We find that this evidence was not objected to, and it may be further said that it was an explanation of matters brought out on cross-examination by the defendant's counsel. An attempt was made to discredit the testimony of the prosecuting witness by showing that he had been guilty of bribing witnesses, or, in other words, had paid money to procure testimony against the defendant. So, on his redirect examination, he was permitted to explain the transaction which had been partly brought out by the cross-examination. It was made clearly to appear that the prosecuting witness had not paid money to any one to testify, or to procure testimony to be used on the trial of the case. It was further shown that the witness had been informed that Rigg knew something of the transaction, and he therefore thought it advisable to procure Rigg's affidavit stating what he knew about the matter. In making this explanation the witness gave the testimony which is so severely criticized. As before stated, the evidence was not objected to. No motion was made to strike it from the record, and therefore error cannot be predicated upon its admission. Again, the matter comes squarely within the rule announced in Craig v. State, 78 Neb. 466, 111 N.W. 143, where it was held: "Where counsel for the defendant, by his cross-examination, has made it necessary for a prosecuting witness to give such evidence by way of explanation of his own conduct, * * * he may, under proper restrictions, give such evidence on his redirect examination," although it would not have been admissible as evidence in chief.
Defendant also complains because his counsel was restricted in his cross-examination of Le Baron. It appears that Le Baron testified for the prosecution, and stated in substance that he and the defendant broke and entered the store of Martin & Haggard at the time alleged in the information, and stole therefrom $ 45 in money and a revolver; that after leaving the store they got into the defendant's buggy, and after driving about a mile divided the money, the defendant taking $ 25 of it and Le Baron $ 20; that the defendant also kept the revolver; that they committed the robbery in order to have some money to spend on the Fourth of July following; that on the evening of July 3 they went to Hastings, and stayed together at the Bostwick hotel, on the following day went to Glenville, and late that night returned home to Trumbull. On his cross-examination Le Baron was asked: ...
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