Bloom v. State , 95 Neb. 710 ( 1914 )

Letton, J.

Plaintiff in error was convicted upon the charge of buying stolen property, knowing that the property was stolen. He brings the case here for review.

The first contention made is that there is not sufficient evidence to sustain the verdict. It is impossible, within the proper limits of this opinion to set forth.all the evidence. Plaintiff in error, hereafter called the defendant, had a small shop or store in Falls City for the sale of clothing, notions, etc.

The testimony in behalf of the state is to the effect that the goods, consisting of a large number of overalls, a number of boxes of cigars and some tobacco, were stolen from freight cars of the Chicago, Burlington & Quincy Railroad Company standing in the railroad yards at Falls City, and that the thieves, Norman and Merle Bonner, sold them to the defendant on or about Sunday, July 21,1912; that Norman Bonner told him at the time that the property was stolen; that the marks or tags were afterwards removed from a number of the overalls and were intermingled by Bloom with other overalls on the shelves; and that, when the officers asked for the goods he got from the Bonners, Bloom showed them where the overalls were, and went into a ba,ck room and brought them a valise filled with the stolen cigars.

The testimony for the defense is that the goods were left in the store by Norman Bonner to be called for; that Bloom was in the country when they were left, Mrs. Bloom being in charge, of the store and giving him permission to leave them; that the goods were not intermingled, but the bundle of overalls brought by Bonner was placed on a shelf by itself, covered with a black cloth; that none of them were sold by the Blooms, and no money was ever paid for them. Several witnesses testify Bloom was at a farm five miles from Palls City on Sunday, July 21, 1912. Part of the testimony of the Blooms is so strongly impeached by other credible witnesses that it tends to weaken their whole story, and this probably ha'd its effect with the jury.

While there is a direct conflict in the testimony, we think it was ample to support the verdict, if the jury believed the witnesses for the state.

It is next assigned that the sheriff was disqualified to select talesmen on account of his bias and prejudice against the defendant. It is shown that all that the sheriff had to do with the selection of the jury was to call five talesmen to fill the panel at the beginning of the term of court at which the trial was had. There is no showing that any of these talesmen were jurors, and no showing of any misconduct on the part of the officer. •

Misconduct of counsel is next complained of. One Whitaker, a witness for defendant, was called to testify to the reputation and character of defendant. ' After testifying that he considered his reputation good for honesty and morality, he was asked by counsel for the state: “Don’t you know the city wouldn’t let him run a pawnshop down there?” This was objected to, and the objection sustained. He was also asked whether he had heard of the trouble that Bloom had had with a machinist about a ring. This was also objected to, and the objection sustained. The nature of the questions them selves was not out of the ordinary; no attempt was made to carry on this line of questioning after the court sustained the objections; and we find no prejudice to defendant in- this matter.

The fourth assignment is that the court erred in not granting plaintiff a new trial on the ground of newly discovered evidence. The affidavit of one Y. D. Kelso is to the effect that on a Sunday in July, 1912, when he went to deliver ice to Mrs. Bloom, he met Norman Bonner in Bloom’s store; that at that time there were one or"two bundles lying on the floor in the room; and that Bloom was not there. At the trial Norman Bonner testified that Kelso was. an iceman and lived in Palls City, and that he was in the room at one time when Bloom paid him money for the goods. We see no reason why a subpoena could not have been issued for Kelso at any time after Bonner testified. A party cannot, with knowledge of the existence of a witness within reach of a subpoena, refrain from calling him, and then, after a trial has been had resulting in an adverse verdict, procure a new trial on the ground of newly discovered evidence. The affidavit of one Foster is also filed to the effect that one day in July he picked up- a pair of overalls from a bunch on the shelf, and that he asked Mr. Bloom the price; that defendant replied they were not his overalls, at the same time calling Foster’s attention to overalls on another shelf, which he stated were his, and which he would sell, arid saying, referring to this pile of overalls and a grip, that they had been “'left there by a fellow last.Sunday,” and the “fellow hadn’t come after them yet.” This affidavit is inconsistent with the testimony of both Mr. and Mrs. Bloom, since, according to their testimony, the stolen overalls were covered with a black cloth as soon as placed upon the shelf and during the time they were in the store. Furthermore, this conversation is said to have occurred several months before the trial. Bloom says he had forgotten the man with whom he spoke; but there is no showing that he made any effort to find this man before the trial. Foster was a resident of Falls City, and it would seem that soon after the trial was had his affidavit was obtained. We think due diligence in the endeavor to procure the testimony of these witnesses before the trial has not been shown, and doubt that, if received, it would affect the result.

It is next complained -that, because the name of Merle Bonner was upon the information, he should have been called to the stand by the state, and that failure to do so is reversible error. There is no statutory requirement in this state that makes it incumbent upon the state to call witnesses whose names are indorsed upon an information. Furthermore the record discloses that Merle Bonner is deficient in mentality, and that, if he had been called by the prosecution the defense might have had a good reason to complain of the action of the state in attempting to nse the testimony of such a Avitness in order to convict the defendant. He Avas called as a witness by the defendant, bnt his testimony is so incoherent and inconsistent Avith itself in several respects as to demonstrate the inadvisability of bis being called as a witness, either by the state or the defendant.

What is said in this connection applies to the complaint that, since Merle Bonner was a hostile witness, the court erred in refusing to permit the defendant to impeach him by showing that he had made statements at the preliminary, trial inconsistent with his present testimony. Moreover, the Avitness was permitted to testify to several statements he had made at the preliminary, and questions asked, to which objections were sustained, did not tend to impeach.

Complaint is made of instructions Nos. 1 and 2 that they omitted to state the issue as to whether the Chicago, Burlington & Quincy Railroad Company whs a corporation, and the issue of an alibi. Instruction No. 1 merely states the allegations of the information. Instruction No. 2 informs the jury of defendant’s plea of not guilty, and gives the law as to the presumption of innocence and the duty of the state to prove guilt beyond a reasonable doubt. There is no error in this instruction.

Instruction No. 2 is also complained of for the same reasons. This instruction restates the material allegations of the information, and directs the jury to acquit the defendant if these are not established beyond a reasonable doubt. There is no error in this instruction. With respect to the claim that neither the instructions of the court nor the evidence cover the allegations in the information that the property was stolen from a corporation it may be said that the information charged that the Chicago, Burlington & Quincy Railroad Company Avas a corporation, and the proof established that a company known by the name given in the information was as a matter of fact carrying on the business of transportation under such name. This is sufficient evidence of the identity of the owners of the property. In Braithwaite v. State, 28 Neb. 832, this court cited with approval and followed the case of Burke v. State, 34 Ohio St. 79. In that case the accused was charged with breaking into a railroad car of the Pittsburg, Cincinnati & St. Louis Railroad Company. There was no allegation in the indictment that the company was a corporation. The court held that “it is sufficient to prove by reputation that there was, at the time Avhen the crime is alleged to have been committed, a corporation known by that name, operating such road, and carrying goods, stock, and passengers for hire in its cars running along said company’s road. A cle facto existence of the corporation is only necessary to be shown.” In this case the information alleged the corporate character of the railroad company, and the proof established its de facto existence. That is all that was required.

It is assigned that the court erred in refusing to give instruction No. 5, to the effect that, although the wife may have knoAvn the goods were stolen, this would not be sufficient to justify the jury in returning a verdict of guilty, although the defendant may have passively consented to what his wife had done without taking any part in the transaction. There was no evidence in the- case to which such an instruction was applicable. No claim is made, and no one testified, that Mrs. Bloom ever purchased any goods. Instructions should have reference to the evidence in the case, and there was no error in this refusal.

Complaint is also made that the court failed to instruct the jury as to the defense of an alibi. No request was made to instruct upon this issue, and under such circumstances the failure to do so was not reversible error. Heidelbaugh v. State, 79 Neb. 499; Ferguson v. State, 52 Neb. 432.

The assignment that the court erred in permitting proof as to the shipping of a trunk containing a part of the stolen goods to Beatrice by Bonner is also untenable. The evidence was corroborative, and, while collateral in its nature and someAvhat remote, it was within the discretion of the trial court- to admit the same. Unless an abuse of discretion is shown which results in prejudice to the rights of the accused, a reviewing court will not interfere with the judgment on this account.

Complaint is made of the refusal to instruct, at defendant’s request, that “the witnesses Merle. Bonner and Norman Bonner are accomplices,” and to caution the jury that for that reason their testimony should be acted upon with great care and caution. The testimony of both the Bonners showed that they were convicted criminals. Their answers to questions and the nature of their testimony clearly demonstrated to any man of ordinary intelligence that their testimony was of such a nature that it should be closely scrutinized. No sensible man would accord their testimony unless corroborated by circumstances or by credible testimony a tithe of the weight which would be accorded to that of an ordinary witness. We think that, while the court might with propriety have instructed the jury to use caution in considering their testimony, it would be an insult to their intelligence to hold that the refusal to give such an instruction was prejudicial, and that a new trial should be granted for such reason. Moreover, it may be doubted whether the tendered instruction is an accurate statement of the law where, as in this state, the crime charged is a substantive offense. 24 Am. & Eng. Ency. Law (2d ed.) note 1, p. 51.

In the reply brief it is complained that a lawyer aided in the prosecution who had not been appointed by the court for that purpose. This point should have been made in the main brief, and we are not bound to consider it. At the trial defendant was represented by two able and experienced counsel who made no objection. After a trial and conviction has been had, it is too late to interpose such an objection, and the right to object to other counsel participating has been waived.

Under section 9050, Rev. St. 1913, it is provided that “no indictment shall be deemed invalid nor shall the trial, judgment or other proceedings be stayed, arrested, or in any manner affected,” for any “defect or imperfection which does not tend to the prejudice of the substantial rights of defendant upon the merits.” Under section 9065, Rev. St. 1913, the provisions of the code in relation to indictments shall, as near as may be, “apply to informations, and all prosecutions and proceedings thereon.” None of the matters complained of have operated “to the prejudice of the substantial rights of the defendant upon the merits.”

The judgment of the district court is therefore

Affirmed.