DocketNumber: No. 22456
Citation Numbers: 109 Neb. 177
Judges: Day, Dean, Morrissey, Redick, Rose, Shepherd
Filed Date: 11/13/1922
Status: Precedential
Modified Date: 9/9/2022
Defendant prosecutes error from a conviction of robbery.- On the evening of February 22, 1921, Earl J. Reed was halted in the railroad yards of the Chicago & Northwestern Railway Company at South Norfolk, where he was employed as a brakeman, a shotgun was thrust against, his person, and he was directed to deliver his watch and. his pocketbook, which contained $35, to his assailant.. Reed -obeyed the order. He soon thereafter notified the police, and after a brief search by Reed and members of the police force defendant and one Flesner.were arrested. Defendant, when first arrested, denied any knowledge of the affair. Subsequently he admitted that he was the man who had threatened Reed and demanded and received his watch and money. His explanation was that he and his companion, Flesner, went out with an unloaded shotgun-with the intention of perpetrating a joke upon a friend
That defendant committed the acts charged stands admitted. He testified that there had been a number of “fake holdups” perpetrated in South Norfolk; that these matters had been discussed by him and a number of his acquaintances, and that one of his acquaintances, a Mr. Doloc, had made the remark that no one could “hold him up;” that on the evening of this occurrence Flesner and others had been guests at defendant’s home, and during the evening defendant and Flesner agreed that they would borrow a shotgun and “hold up” Doloc, not for the purpose of taking Ms property, but merely as a joke; that in pursuance of this agreement defendant and Flesner borrowed a shotgun and went to the railroad yards expecting to meet Doloc; that they did not meet Doloc, but did meet Reed, and, believing Reed to be their friend Doloc, proceeded to carry out the joke; that he did not discover Ms mistake until after he had taken the watch and purse and its contents from Reed; that he then became confused, but began arrangements to effect a return of the property to Reed without letting Reed or other persons know of defendant’s identity. In much of his story he is corroborated by other witnesses.
The cMef complaint of defendant is directed to certain remarks made by the trial judge when ruling on objections to the admission of evidence. In reciting the evening’s transactions defendant testified: “We sat down, to eat supper and were talking there, and I don’t know just who mentioned it, but we got to talking about a little fake holdup that had been pulled off down there in the yards
Defendant proceeded to testify along another line, but finally said: “Then Mr. Flesner and I * * * we thought we would disguise ourselves a little bit and go down and have a little fun with some of the boys, because they had said that nobody could hold them up.” The county attorney objected to this testimony, and the,court said: “I want it distinctly understood that there is no such a thing, as a fake holdup. Get that in your mind. Witli that understanding, if this man wants to testify to what he did, he may go on.” Defendant testified at length as to his motives and in relation to what he claimed he intended should be a mere make-believe robbery.
Defendant’s wife was also permitted to testify to a conversation had at their dinner table between defendant and Flesner indicating that they went out to play a practical joke upon Doloc and not for the purpose of effecting a robbery. Defendant called a neighbor, one Smith, as a witness, who testified that defendant called at his home at 10 or 10:30 o’clock on the night the robbery is alleged to have been committed, and that the witness had a conversation with defendant “about a holdup.” The witness was asked “What was said?” Objection was made to this question, and defendant’s counsel thereupon stated that the testimony was offered for the purpose of showing defendant’s intention. And the court said: “A man’s intent is shown by his actions. There is no joke in this case. There is no such thing as a fake holdup.” The ob
The record as a whole shows that defendant was permitted to tell his entire story, and we are not prepared to say that the rulings of the court on the exclusion of the testimony offered was prejudicially erroneous. Much latitude is allowed the trial court in the exercise of its judicial discretion. It must, however, be conceded that, under the circumstances of this case, the acts themselves being admitted, the material question was that of intent. The court by a formal instruction told the jury: “The law presumes that a mature man, in the possession of his mental faculties, intends the reasonable, probable and natural consequences of his acts voluntarily and intentionally done, and this presumption will prevail unless upon a consideration of all the evidence bearing on the point you entertain a reasonable doubt whether such intent exists.”
This is a correct statement of the law in the abstract, but it did not submit to the jury defendant’s theory of the case. The instruction is not directly challenged,, but, as
The acts complained of stood confessed before the jury. The information charged that they were done with the intent of defendant “unlawfully and feloniously to take, steal and carry away” the property of the complaining witness. Defendant’s plea of not guilty put the question of intent in issue, and to supplement his plea of not guilty he offered evidence to show that the whole affair was intended to be a joke. This evidence ought to have been submitted to the jury Avithout disparagement. The judgment is reversed and the cause remanded.
Reversed.