Zediker v. State

• Decision Date: 23 January 1926
• Docket Number: 24890
• Citation: 207 N.W. 168,114 Neb. 292
• Parties: URBAN ZEDIKER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

207 N.W. 168

114 Neb. 292

URBAN ZEDIKER v. STATE OF NEBRASKA

No. 24890

Supreme Court of Nebraska

January 23, 1926

ERROR to the district court for Box Butte county: WILLIAM H WESTOVER, JUDGE. Reversed, with directions.

REVERSED.

M. F Harrington and E. C. Barker, for plaintiff in error.

O. S Spillman, Attorney General, and Harry Silverman, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

EBERLY, J.

From conviction of larceny, after his separate trial, upon information filed in the district court for Box Butte county charging the defendant (plaintiff in error) and three others in one count jointly with burglary and larceny, alleged to have been committed at the same time and as one transaction by all defendants, Urban Zediker has appealed.

The first question presented by the record is the legal effect of the verdict returned by the jury that they "do find the defendant Urban Zediker guilty of larceny," and containing no finding on the charge of burglary. The contention is made that this verdict operates to acquit the defendant of both crimes charged in the information. With this contention we do not agree. The information is properly drawn.

"Where different criminal acts constitute parts of the same transaction, they may be charged in the same count. There are many illustrations of this rule, among which are burglary and larceny. It is permissible to charge a burglary only, as that the accused broke and entered with intent to steal property, and also a larceny, as that he then and there stole the property described; and such an indictment will sustain a conviction for either of the crimes charged. 1 Bishop, Criminal Procedure, secs. 423, 439; Breese v. State, 12 Ohio St. 146; State v. Brandon, 7 Kan. 106; State v. Hayden, 45 Iowa 11; State v. Brady, 14 Vt. 353; Commonwealth v. Tuck, 20 Pick. (Mass.) 356; Josslyn v. Commonwealth, 6 Met. (Mass.) 236." Aiken v. State, 41 Neb. 263, 59 N.W. 888. See, also, Lawhead v. State, 46 Neb. 607, 65 N.W. 779.

The principle involved in the contention here made was discussed by this court in the following language: "It is next argued that the sentence cannot stand because the verdict is fatally defective. The point is not well taken. In a single count of the information defendant was accused of burglary--feloniously breaking into a freight car with intent to steal--and of larceny--stealing articles from the freight car. The charging of both criminal acts in a single count was permissible. Lawhead v. State, 46 Neb. 607, 65 N.W. 779. The larceny tends to show the criminal intent essential to burglary. The evidence is sufficient to sustain a verdict against defendant for either burglary or larceny. Under the instructions the jury were at liberty to acquit defendant entirely or to find him guilty of either felony." Vickers v. State, 111 Neb. 380, 196 N.W. 629.

It may be said that the cases cited by counsel for the defendant present solely the question of prior conviction or acquittal as involving former jeopardy. That point is not for consideration here. The facts in the present case, assuming counsel's statements to be true, invoke rather the application of the rule that where two or more complaints, or counts, for the same offense, or offenses, arising or included in the same transaction, are tried together, an acquittal as to one charge by reason of variance is no bar to a conviction on another charging the offense in a different way. 16 C. J. 243, sec. 380; Commonwealth v. Baldwin, 213 Mass. 238.

The next question presented by the record is the admission by the trial court, over objection, of the evidence of witness Stickrod as to a conversation between Stickrod and one Gebhardt who, with the defendant herein, was jointly charged with the commission of the offense. The conversation in question occurred on the day following the burglary. The defendant being tried in this case was not present, and the evidence was introduced on his separate trial. To the question eliciting this evidence the objection, "Objected to as incompetent," etc., was made by the defendant and overruled by the court.

It may be said in passing that this objection was sufficient in form and substance. State v. Magone, 32 Ore. 206, 51 P. 452; Nightingale v. Scannell, 18 Cal. 315; Greenleaf v. Dubuque & Sioux City R. Co., 30 Iowa 301.

The objection being thus overruled, it was, under provisions of chapter 245, Laws 1915, section 8824, Comp. St. 1922, unnecessary to repeat this objection to further testimony of the same nature by the same witness in order to save error, if any, in the ruling of the court whereby such testimony was received.

It is to be noted that the gravamen of the offense charged in the present case is not conspiracy, but joint commission of burglary and larceny. Butler v. State, 113 Ind. 5, 14 N.E. 247.

In reply to the question to which the above objection was made and overruled, witness Stickrod spoke as follows:

"Gebhardt came to the house and he says, 'How is everything?' And I said, 'There was a big robbery up town last night.' And he says, 'Whose place was it?' And I says, 'Isaacson's.' And with that my wife left the house and went over to one of the neighbors, I think, and he says, 'We sure pulled a clean job.' And I says, 'Was you in on it?' And he says, 'Certainly.' I said, 'How did you get it?' And he said, 'Zediker went over the transom,' I forget which one he said helped him over, 'and went through and took the bar off Mr. Isaacson's back door and let them in.' I think he said Winslow went in, and he stayed on the outside watching Cal."

In this, and in subsequent admission by the court of all testimony of the same nature by this witness, the court erred. For it must be conceded that the essential principle of the hearsay rule is that for the purpose of securing the trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, all testimonial assertions must be made in court and subject to cross-examination. True, declarations of a conspirator affecting his coconspirators made during the pendency of the criminal enterprise and in furtherance of its objects form an exception to the general rule. This exception may be stated in the following language:

"The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all; and is therefore original evidence against each of them. * * * And here, also, care must be taken that the acts and declarations, thus admitted, be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of its objects. If they took place at a subsequent period, and are, therefore, merely narrative of past occurrences, they are, as we have just seen, to be rejected." 1 Greenleaf, Evidence (16th ed.) sec. 184a.

The substance of the above rule as thus expressed appears to be adopted in this jurisdiction. Speaking with reference to a charge of conspiracy this court has said: "Declarations made in pursuance of the object (of the conspiracy) are likewise admissible, but to be so they must not be merely narrative of past occurrences or statements of future purposes; they must tend so directly toward the accomplishment of the alleged common object as to constitute a part of the res gestae." Farley v. Peebles, 50 Neb. 723, 70 N.W. 231.

Nor do we find there is any repugnancy between this doctrine and the rule announced in O'Brien v. State, 69 Neb. 691, 96 N.W. 649, relied on by the state. In this case a statement of one of the joint defendants made for the purpose of affecting the sale while he was in possession of alleged stolen hogs, and engaged in selling the same, that "he had raised them at Elkhorn," was rightfully received against all the joint defendants, whether present or not, and this on the theory that the transaction before the court was a conspiracy to steal and sell hogs for the benefit of those engaged in the illegal enterprise, and that such conspiracy was pending until the sale had been made and the property divided. The undisputable inference carried by expression made use of in the case is that the statement was made in furtherance of the criminal design. Indeed, this element was expressed in the rule announced by this court, which is as follows: "The acts and declarations of a conspirator, during the pendency of the conspiracy, and in furtherance of the common purpose, are admissible in evidence against his associates." O'Brien v. State, 69 Neb. 691, 96 N.W. 649.

The rule above cited is generally adopted throughout all jurisdictions. On this subject the supreme court of the United States has laid down the following rule "Doubtless, in all cases of conspiracy, the act of one conspirator in the prosecution of the enterprise is considered the act of all, and is evidence against all. United States v. Gooding, 25 U.S. 460, 469, 6 L.Ed. 693. But only those acts and declarations are admissible, under this rule, which are done and made while the conspiracy is pending, and in furtherance of its object. After the conspiracy has come to an end, whether by success or by failure, the admissions of one conspirator, by way of narrative of past facts, are not admissible in evidence against the others." Logan v. United States, 144 U.S. 263, 308, 36 L.Ed. 429, 12 S.Ct. 617. This rule, including the limitation that the declarations, to be admissible against those not present when made, must be in actual furtherance of the conspiracy, is further sustained by the following authorities: State v....