Young v. State

• Decision Date: 15 December 1937
• Docket Number: 30177.
• Citation: 276 N.W. 387,133 Neb. 644
• Parties: YOUNG v. STATE.
• Court: Nebraska Supreme Court

276 N.W. 387

133 Neb. 644

YOUNG v. STATE.

No. 30177.

Supreme Court of Nebraska.

December 15, 1937

Syllabus by the Court.

1. To prove burglary, there must be evidence tending to prove the unlawful breaking and entering, and that such unlawful acts were committed with felonious intent, and such proof may be shown by direct or circumstantial evidence.

2. " Failure to challenge a juror for cause as to his competency, and to examine him or other witnesses in support of the challenge, is a waiver, even though the fact of incompetency is not known to the party until after verdict." 16 R.C.L. 284, § 100.

3. An objection to a juror, raised for the first time in a second motion for a new trial, filed 14 days after the first motion for a new trial, such motion containing no showing of newly discovered evidence, material for defendant's cause, which he could not, with reasonable diligence, have discovered and produced at the trial is out of time and not authorized by section 29-2103, Comp.St.1929 as amended by chapter 65, Laws 1935 (section 1).

4. Evidence examined, and held sufficient for the jury to determine whether or not defendant is guilty as charged in the information, beyond a reasonable doubt.

Error to District Court, Richardson County; Falloon, Judge.

Dave Young was convicted of breaking and entering with intent to steal, and he brings error.

Affirmed.

J. J Brown, of Humboldt, for plaintiff in error.

Richard C. Hunter, Atty. Gen., Francis V. Robinson and Bert L. Overcash, Asst. Attys. Gen., and J. H. Falloon, of Falls City, for the State.

Heard before GOSS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and ELDRED, District Judge.

EBERLY, Justice.

Plaintiff in error, Dave Young, (here-inafter referred to as the defendant), was convicted in the district court for Richardson county of the offense of breaking and entering with intent to steal, and sentenced to one year in the state penitentiary at hard labor. Motion for a new trial was overruled, and the defendant prosecutes error to this court.

The state's evidence follows: Harold Noah, 16 years old, lived next door north of and in the same block with the Ada Kenn home. He testified that on the night of July 17, 1936, he was sleeping on the south porch of his home, about even with and directly north of the Kenn home, a distance of 50 or 60 feet, when he was awakened by the barking of a dog, and saw a light in the west window on the north side in the one bedroom of the Kenn home; that he called to his mother, who in turn called the police; that he could see quite plainly, was watching the house and did not see any one going in or coming out of the house after he first saw the light and saw the officers go to the house; that from the time he first saw the light until the officers arrived about 15 minutes elapsed. On cross-examination he testified that he was standing near his mother for a certain interval of time and did not know whether he could quite see the Kenn house during that time; that one of the officers went to the rear and the other to the front door of the Kenn house.

David McCage, night officer, testified that he arrived at the Kenn home between 1:30 and 2 o'clock on the night in question, and, with officer Asendorff, went directly to the house, Asendorff to the rear of the house, which was on the west side towards the alley, and witness to the front, and could see a light in the northwest window; that he went into the house from the east and finally turned into one door in the kitchen, flashing his light, and met Ralph Asendorff coming out; that there was no light in the kitchen, but there was a light in the bedroom; that the bedroom door was open; that defendant came through the doorway, and that neither the defendant nor Ralph Asendorff said anything; that Ralph Asendorff had a hammer in his overalls and a pair of pliers; that defendant had a padlock on his person. The witness went back to the house later, found a crowbar in the bedroom standing by the dresser against the wall; witness noticed that one of the dresser drawers was open, and that a lady's purse on top of the dresser was open. The witness stated that on the previous afternoon he was at the house when they took Ada Kenn to the state hospital, and that the house was then in an orderly condition. On cross-examination he testified to a growth of weeds and brush on the premises, and that the gates were wired, the house being surrounded by a wire fence. This testimony was corroborated by Claude Asendorff, also a police officer and the father of Ralph Asendorff. It was shown that the defendant was dressed in an undershirt, overalls and without shoes. The testimony of Ralph Ramsey, deputy sheriff, disclosed that a search was made of the two men and that pliers, a hammer and a padlock were found. Further evidence in behalf of the state disclosed that on the afternoon that Ada Kenn was taken from her home the doors were nailed shut and the house locked; also, there was evidence that the doors had been pried open by a crowbar or a pinch bar.

The defendant and Ralph Asendorff testified substantially to the following facts: Defendant, Ralph Asendorff and another party were sleeping in the yard on the defendant's premises, which was across the street from the Kenn home. Asendorff had been awakened by the barking of a dog, and he in turn had awakened the defendant, but did not disturb the third party. They noticed a light, and then went to the Kenn house. The rear door of the house was open and they entered the house through the front door, which was also open. They were there but a short time when the officers arrived. They were taken to the station, searched and placed in jail. The record shows some conversation had between the defendant, Ralph Asendorff and the officers, to the effect that defendant requested the officers to release him and stated that nothing would be said about it. The testimony of the officers was to the effect that no explanation was given, and that a sufficient length of time elapsed in which the defendant could have explained the reason for his being in the Kenn house. The explanation given at the trial was that the defendant and Asendorff had gone to the Kenn house in order to protect the property of Ada Kenn and to see who was there. It is further contended by defendant that the surrounding circumstances, viz., the weeds and accessibility to the basement, providing a place for marauders to hide, the testimony of one witness that he saw two men running down the alley at 2 o'clock on the night in question, and other circumstances all indicated that other persons had been in the house besides the defendant and Ralph Asendorff. Defendant also introduced witnesses who testified as to his previous good reputation. There was evidence of a padlock, similar to the one taken from the defendant, having been in the Kenn home. Defendant's explanation of his possession of the padlock was that he had purchased it at Montgomery Ward's store.

The fact that defendant, having lived in the community for nearly two months, knew that Ada Kenn had been taken to the state hospital; the fact that a hammer had been borrowed from defendant's...