Zediker v. State

CourtSupreme Court of Nebraska
Citation114 Neb. 292,207 N.W. 168
Docket NumberNo. 24890.,24890.
PartiesZEDIKER v. STATE.
Decision Date23 January 1926

114 Neb. 292
207 N.W. 168

ZEDIKER
v.
STATE.

No. 24890.

Supreme Court of Nebraska.

Jan. 23, 1926.



Syllabus by the Court.

Burglary and larceny may be charged in a single count of an information, where the criminal acts of which the defendant is accused constitute parts of the same transaction. Under such information there may be a conviction of either or both felonies, as the evidence may require.

Where testimony in the nature of hearsay is sought to be introduced, an objection on the ground that the same is “incompetent” is sufficient in form and substance.

Where objection to the introduction of evidence is once made and overruled, it is not necessary to repeat the 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.

Wherever the writings or words of any of the parties charged with, or implicated in, a conspiracy can be considered in the nature of an act done in furtherance of the common design, they are admissible, not only against the party himself, but against all of his coconspirators, whether present or not. Wherever the writings or words of such party amount to an admission merely of his own guilt, and cannot be deemed acts done in furtherance of the common design, they can be received in evidence only against the party making or uttering them. Held, under the facts as reflected by the record in the case, statements set forth in this opinion, testified to over objection, were the recital or narration of a past transaction merely, and were not made in furtherance of the common design.

“The Constitution guarantees to every person charged with crime a trial by an impartial jury. If there is such a prejudice in the minds of the people of the county against the defendant, or such a firm conviction of his guilt of the crime charged against him that there is substantial and well-founded reason to believe that he cannot obtain a fair trial in the county, the Constitution requires that the venue be changed. The trial court must exercise discretion in determining these facts, but has no discretion to refuse the change of venue when these facts appear.” Lucas v. State, 75 Neb. 11, 105 N. W. 976.

In view of the facts and circumstances set forth in the record and referred to in this opinion, held, that a change of venue should have been granted, and that the refusal so to do constituted an abuse of discretion on the part of the trial court.


Appeal to District Court, Box Butte County; Westover, Judge.

Urban Zediker was convicted of larceny, and he appeals. Reversed and remanded, with instructions.

[207 N.W. 168]

E. C. Barker, of Alliance, and M. F. Harrington, of O'Neill, for appellant.

The Attorney General and Harry Silverman, Asst. Atty. Gen., for the State.


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

EBERLY, J.

[1] 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

[207 N.W. 169]

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, 423, 439; Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340]; State v. Brandon, 7 Kan. 106; State v. Hayden, 45 Iowa, 12; State v. Brady, 14 Vt. 353;Commonwealth v. Tuck, 20 Pick. (Mass.) 356; Josslyn v. Commonwealth, 6 Metc. (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...

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