Wiese v. State

• Decision Date: 08 November 1940
• Docket Number: 30877.
• Citation: 294 N.W. 482,138 Neb. 685
• Parties: WIESE v. STATE.
• Court: Nebraska Supreme Court

294 N.W. 482

138 Neb. 685

WIESE v. STATE.

No. 30877.

Supreme Court of Nebraska.

November 8, 1940

Syllabus by the Court.

1. Upon conviction of accused for the second offense of chicken stealing under the Nebraska statute, an increase in the penalty therefor may be imposed for a previous conviction for chicken stealing in Iowa. Comp. St.1929, sec. 28-524.

2. To authorize an increase in the penalty for the second offense of chicken stealing, conviction for the first offense must be charged in the information.

3. " Where the statute authorizes an increased penalty upon a second or subsequent conviction, the record of the former conviction in the proper court is, of course, admissible to establish such conviction." Burnham v. State, 127 Neb. 370, 255 N.W. 48.

4. " A motion to quash may be made in all cases, when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged." Comp.St.1929, sec. 29-1807.

5. " The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue." Comp. St.1929, sec. 29-1811.

6. A statutory rule of the criminal law provides that no indictment shall be deemed invalid " for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged." Comp.St.1929, sec. 29-1501.

7. Evidence outlined in opinion held sufficient to sustain the conviction of defendant for chicken stealing.

8. In a criminal prosecution, defendant cannot be convicted on circumstantial evidence alone, unless the circumstances established exclude every reasonable hypothesis except his guilt, and an instruction in substantial compliance with this rule, though in different language, is not erroneous.

Error to District Court, Cass County; Wilson, Judge.

John Wiese was convicted of chicken stealing, and he brings error.

Judgment affirmed.

Grenville P. North, of Omaha, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and C. S. Beck, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

ROSE Justice.

In a prosecution by the state of Nebraska in the district court for Cass county, John Wiese, defendant, was prosecuted for violating the statute which provides that, whoever steals any chickens or other poultry of any value " shall for the first offense be imprisoned in the county jail not less than ten days nor more than six months or in the state penitentiary for not more than one year; and for a second or subsequent offense, such person or persons so offending shall be deemed guilty of felony, and, upon conviction thereof, shall be imprisoned in the state penitentiary for not more than five (5) years nor less than one (1) year." Comp.St. 1929, sec. 28-524.

The first count of the information charged that defendant, in Cass county, Nebraska, on or about April 29, 1939, " unlawfully and feloniously did steal, take and carry away about 36 chickens of value, the personal property of John Blotzer, without the consent of the said John Blotzer, the owner thereof, and against his will, and that the said defendant, John Wiese, was arrested and convicted of chicken stealing on or about October 16, 1935, in the county of Cass, state of Iowa, and committed to the state penitentiary at Fort Madison, Iowa, for five years, and that the charge herein alleged is for the second or subsequent offense of chicken stealing."

In similar form the information contained a second count in which defendant was charged with stealing in Cass county, Nebraska, May 1, 1939, about 37 chickens belonging to Arthur Rough. The former conviction for chicken stealing in Cass county, Iowa, was also charged in the second count in the form alleged in the first count.

Defendant, by general demurrer, challenged the sufficiency of the information to charge him with an offense punishable under the laws of Nebraska. The demurrer was overruled and afterward defendant presented a formal motion to quash the information, which was also overruled. A plea of not guilty followed and upon a trial the jury found defendant guilty on each count for the first offense of chicken stealing in Nebraska. On that verdict defendant was sentenced to serve one year in the penitentiary for each offense, the sentences to run concurrently. As plaintiff in error defendant presents for review the record of his conviction.

In the trial court it was urged by general demurrer that the facts stated in the first and second counts of the information did not constitute an offense punishable under the laws of Nebraska and the overruling of the demurrer is assigned as error. In this connection it is urged further that the Nebraska statute does not authorize punishment for an offense committed in another state. The information charged in direct terms every element of chicken stealing defined by the Nebraska statute as shown by the language already quoted therefrom. The information was not invalidated by the additional allegation that defendant had been convicted of chicken stealing in Iowa in 1935 and committed to the penitentiary in that state. The sole purpose of that allegation was to increase the penalty for the " second or subsequent offense." Convictions in Nebraska for both offenses are not required by statute as conditions of an increase in penalty. The former conviction must be charged in the information for a second offense, if the penalty therefor is increased. Osborne v. State, 115 Neb. 65, 211 N.W. 179.The law has been stated thus: " Where the statute authorizes an increased penalty upon a second or subsequent conviction, the record of the former conviction in the proper court is, of course, admissible to establish such conviction." Burnham v. State, 127 Neb. 370, 255 N.W. 48.

It follows that the information charging chicken stealing was sufficient as against the general demurrer.

The information was attacked by motion to quash after the demurrer was overruled. This point seems to be without merit. The criminal law provides: " A motion to quash may be made in all cases, when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged." Comp.St.1929, sec. 29-1807.

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