Aiken v. State

Nebraska Supreme Court

Aiken v. State

59 N.W. 888, 41 Neb. 263, 1894 Neb. LEXIS 159

CourtNebraska Supreme Court

DecidedJune 26, 1894

DocketNo. 6723

StatusPublished

Cited by9 cases

This text of 59 N.W. 888 (Aiken v. State) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aiken v. State, 59 N.W. 888, 41 Neb. 263, 1894 Neb. LEXIS 159 (Neb. 1894).

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Opinion

Post, J.

The plaintiff in error was convicted of the crime of burglary by the judgment of the district court of Douglas county, and which he now seeks to reverse by means of a petition in error addressed to this court.

The first proposition argued is that the indictment is bad for duplicity. The charge of burglary, which is in the usual form, is followed by the further allegation that “ the said James Aikin and * * * then and there being in said storehouse nineteen pieces of English worsted of the value of $27 5, and * * * the personal property of' said Soren Larsen, then and there being found in said storehouse, feloniously and burglariously did steal, take, and carry away.” To that contention a sufficient answer is that no objection was made to the indictment until after verdict. Where two or more distinct felonies, arising out of different transactions, are charged in the same indictment, the prosecutor will, on motion of the accused, be required to elect upon which charge he will proceed; but such objection must be made before trial and verdict, otherwise it will be waived. (Thompson v. People, 4 Neb., 524.)

2. The indictment is, however, free from the vice imputed to it. 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. [265]*265which 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, 423, 439; Breese v. State, 12 O. St., 146; State v. Brandon, 7 Kan., 106; State v. Hayden, 45 Ia., 12; State v. Brady, 14 Vt., 353; Commonwealth v. Tuck, 20 Pick. [Mass.], 356; Josslyn v. Commonwealth, 6 Met. [Mass.], 236.)

3. It is contended, also, that the evidence is insufficient to sustain the conviction; but that contention is based upon the proposition that the jury should have accepted the testimony of the witnesses for the accused rather than of those for the state. It was for the jury to say which set of witnesses should be credited. There is no error in the record and the judgment is

Affirmed.

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Post, J.

The plaintiff in error was convicted of the crime of burglary by the judgment of the district court of Douglas county, and which he now seeks to reverse by means of a petition in error addressed to this court.

The first proposition argued is that the indictment is bad for duplicity. The charge of burglary, which is in the usual form, is followed by the further allegation that “ the said James Aikin and * * * then and there being in said storehouse nineteen pieces of English worsted of the value of $27 5, and * * * the personal property of' said Soren Larsen, then and there being found in said storehouse, feloniously and burglariously did steal, take, and carry away.” To that contention a sufficient answer is that no objection was made to the indictment until after verdict. Where two or more distinct felonies, arising out of different transactions, are charged in the same indictment, the prosecutor will, on motion of the accused, be required to elect upon which charge he will proceed; but such objection must be made before trial and verdict, otherwise it will be waived. (Thompson v. People, 4 Neb., 524.)

2. The indictment is, however, free from the vice imputed to it. 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. [265]*265which 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, 423, 439; Breese v. State, 12 O. St., 146; State v. Brandon, 7 Kan., 106; State v. Hayden, 45 Ia., 12; State v. Brady, 14 Vt., 353; Commonwealth v. Tuck, 20 Pick. [Mass.], 356; Josslyn v. Commonwealth, 6 Met. [Mass.], 236.)

3. It is contended, also, that the evidence is insufficient to sustain the conviction; but that contention is based upon the proposition that the jury should have accepted the testimony of the witnesses for the accused rather than of those for the state. It was for the jury to say which set of witnesses should be credited. There is no error in the record and the judgment is

Affirmed.

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59 N.W. 888, 41 Neb. 263, 1894 Neb. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aiken-v-state-neb-1894.

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