DocketNumber: No. 28254
Citation Numbers: 123 Neb. 403
Judges: Day, Dean, Eberly, Goss, Paine, Rose, Ryan
Filed Date: 6/16/1932
Status: Precedential
Modified Date: 9/9/2022
In the district court for Kearney county, Harvey Sypherd was convicted of stealing a quantity of wheat of the value of $42, the property of Catherine Stanton. From the action of the trial court overruling his motion for a new trial, and the sentence imposed, he prosecutes error.
The record has been read with care. It is quite apparent that no error was committed in the denial of defendant’s motion for a discharge, based upon the transcript of the examining magistrate; nor is the court order permitting the indorsement of the names of additional witnesses on the information properly the subject of complaint; nor did the district court err in overruling the motion of the defendant for a continuance for 48 hours based wholly on the fact of the indorsement of the additional names and without further showing to sustain the same; so, too, it appears that the instruction given by the court on its own motion on the question of the defendant’s flight was warranted by the evidence then before it, and was not prejudicial to the defendant. However, the assignment of error most stressed by the defendant relates to the sufficiency of the evidence to sustain the conviction.
It must be said that, in the light of the testimony before us, the felonious stealing of 75 bushels of wheat, “machine measure,” of a value in excess of $35, the property of Catherine Stanton, by some person on the night of October 18-19, 1930, is indisputably established. The corpus delicti is fully proved. A lawful jury heard the evidence adduced, observed the witnesses testifying (which included the defendant), and, after having been properly instructed as to the law of the case, determined that the defendant was a participator in the commission of the offense. After a careful consideration of the evidence, we arrive at the conclusion that the testimony before this jury, though conflicting in part, and largely circumstantial, justified their verdict.
True, the defendant claims to have himself delivered 15 bushels of the wheat and placed the same in this garage, but there is no evidence in the record which in any manner corroborates defendant’s statement that this wheat was there delivered by him on the 17th or 18th of October. He also claims that a certain person who was indebted to him in the sum of $52 was expected to secure some $52 worth of wheat from a farmer in the country, whose identity is not disclosed, for which 65 cents a bushel (more than the market price) was to be paid. But this would make the total amount of the wheat to be received at' the rented garage 95 bushels. The evidence, contrary to defendant’s contention, sustains the conclusion that this wheat did not exceed 75 bushels. It is also admitted that the defendant was not storing this grain with a view to a raise in price. It was at all times his intention to make an early disposition or sale of it. In view of these facts, it is quite obvious that the ordinary, .the natural, and the direct method of handling the transactions would have been for the defendant to have delivered the 15 bushels, which he claimed to have stored in the garage, to the market direct when he received it, and in like manner to have had the remaining wheat, if such there was, delivered to market when it was received. By so doing, not only would the cost of the rental of the garage have been unnecessary, but the handling of the wheat twice in the course of de
In view of this situation, we are of the opinion that the district court did not err in overruling the motion for a new trial, or in the sentence imposed, and its action is therefore
Affirmed.