Wilson v. State
| Decision Date | 26 November 1948 |
| Docket Number | 32458. |
| Parties | WILSON v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A preliminary hearing before a magistrate is a right to which one charged with an offense triable to a jury in the district court is entitled but it is a right which may be waived by the person charged.
2. An objection after verdict that a preliminary examination has not been had comes too late to be considered by this court.
3. An objection that no preliminary examination was had must have been raised by motion to quash the information or by plea in abatement before going to trial in order to be available for review.
4. A conviction of a criminal offense may rest upon the testimony of an accomplice where, considered with all the evidence, it satisfies the jury beyond a reasonable doubt of the guilt of the accused.
5. Error committed in the giving of an instruction unless prejudicial to the rights of a defendant may not be considered as ground for reversal.
6. An instruction to a jury the effect of which is to invade or abridge a substantial right of a defendant in a criminal case is reversible error.
7. In jury cases juries are the judges of the credibility of witnesses and of the weight to be given their testimony and within their province, they have the right to credit or reject the whole or any part of the testimony of a witness in the exercise of their judgment.
8. An instruction in a criminal case the effect of which is to infringe upon the right of a jury as the judge of the credibility of witnesses and the weight to be given their testimony is an invasion and an abridgment of a substantial right of the defendant.
John L. Mattox, of Syracuse, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and Walter E. Nolte, Asst. Atty Gen., for defendant in error.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
William Henry Wilson, also known as James Wilson, was convicted by the verdict of a jury on a charge of burglary in the district court for Otoe County, Nebraska, and sentenced to serve a term of three years in the state penitentiary. By petition in error to this court he seeks a reversal of the verdict and sentence. He will be hereinafter referred to as the defendant.
The factual situation here is that one R. P. Schruender was the owner and operator of a retail grocery and liquor store at 620 Central Avenue, Nebraska City, Nebraska. The store was broken into on the night of October 24, 1947, and several cases of whiskey were removed, a portion of which was transported from the premises. It was for this act of breaking and entering or burglary that the defendant was informed against, tried, convicted, and sentenced.
The brief of defendant contains numerous assignments of error but only a few require consideration. The others are so clearly without sound basis that comment with regard to them is not required.
Defendant says that he is entitled to a reversal because he had no preliminary hearing before an examining magistrate. It is true that no such hearing was had but this came about because following full information to defendant as to his rights such hearing was waived. A preliminary hearing before a magistrate is a right to which one charged with an offense triable to a jury in the district court is entitled but it is a right which may be waived by the person charged. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445; Jahnke v. State, 68 Neb. 154, 94 N.W. 158, 104 N.W. 154; Meyers v. State, 104 Neb. 356, 177 N.W. 177; Greenough v. State, 136 Neb. 20, 284 N.W. 740. There was a rehearing and a new opinion in Jahnke v. State, supra, but this principle was not disturbed.
If this were not true still under another rule this assignment would not be available to defendant. This court said in Coffield v. State, 44 Neb. 417, 62 N.W. 875: This statement was quoted with approval in Meyers v. State, supra. See, also, Nelson v. State, 115 Neb. 26, 211 N.W. 175; Roberts v. State, 145 Neb. 658, 17 N.W.2d 666. No such motion or plea was made.
The contention of another assignment is that it was error to allow the verdict to stand since the conviction rests solely and alone upon the uncorroborated testimony of an accomplice. Proof of breaking and entering and the removal of the property involved was made, it is true, solely by the testimony of a witness admittedly an accomplice. As authority reliance is had upon Jahnke v. State, supra.
No such rule was laid down in that case. The court made no determination of such a question in the opinion. All that appears on the subject is in the second opinion and is the following [68 Neb. 154, 104 N.W. 158]: 'If the testimony of an accomplice, who can so readily change his evidence from time to time, is alone sufficient to support a conviction of so serious a charge, still this record contains a conclusive reason compelling us to reject his testimony.'
In a syllabus point it was said:
It is clearly observable that the testimony of the witness in question was not rejected on the ground that he was an accomplice but on the ground that he had given other testimony which was palpably false.
The rule as stated can have no application here since the basis for rejection is not present. There is nothing in this record upon which to base a conclusion that any of the testimony of the accomplice was palpably false.
This court has consistently held to the rule that a conviction may, in this kind of case, rest upon the testimony of an accomplice where, considered with all the evidence, it satisfies the jury beyond a reasonable doubt of the guilt of the accused. Olive v. State, 11 Neb. 1, 7 N.W. 444; Lamb v. State, 40 Neb. 312, 58 N.W. 963; Lawhead v. State, 46 Neb. 607, 65 N.W. 779; State v. Routzahn, 81 Neb. 133, 115 N.W. 759, 129 Am.St.Rep. 675; Barnes v. State, 124 Neb. 826, 248 N.W. 381; Millslagle v. State, 137 Neb. 664, 290 N.W. 725.
The defendant urges that it was error to give instruction No. 9-a. The grounds for objection are that the instruction was untimely or too late and that it responded to no issue in the case.
The effect of the instruction was to tell the jury that if the defendant aided, abetted, or procured another to commit the offense charged he could be prosecuted and punished as if he were a principal offender.
An examination of the record discloses that the evidence was in proof of guilt of this defendant as a principal and not as aider, abetter, or procurer hence the instruction was upon an issue not presented. It was therefore, as contended, error to give it. The error was however without prejudice and cannot be considered as ground for reversal. The giving of it could have in nowise prejudiced any substantial right of the...
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