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110 Neb. 822

O'Connor v. State

Nebraska Supreme Court

Decided October 1, 1923

Nebraska Supreme Court · decided 1923-10-01

<p>1. Criminal Law: Circumstantial Evidence. When it is sought to establish the guilt of the accused in a criminal case by circumstantial evidence, it is not sufficient that the facts create a probability, though a strong one. If, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential that the circumstances, taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis.</p> <p>2. Forgery: Uttering False Will: Burden of Proof. In a prosecution for uttering a false will as. true and genuine knowing the. same to be false, with intent to defraud, and the theory of the prosecution is that the will was recently drawn by the accused or some one in collusion with him and dated back, and the instrument carries upon its face evidence inconsistent with such theory, the burden is upon the state to overcome such evidence by proof beyond a reasonable doubt.</p>

Cited by 2 later decisions — most recently November 1931

2 federal appellate ·

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1923-10-01

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Good, J.,

¶1dissenting.

¶2I have no criticism to make of the principle of law announced in the syllabus of this case, but, after a careful examination of the record, I am unable to concur in the view of the majority of the court that the evidence is insufficient to establish defendant’s guilt beyond a reasonable doubt.

¶3In my opinion, the evidence establishes the fact that *830the will in question was a' forgery, and that the defendant in this case, with knowledge thereof, attempted to procure its probate with intent to defraud, and was therefore guilty of uttering a false will as true and genuine, knowing the same to be false. No error in any ruling of the court or in any instruction is pointed out in the opinion. The reversal is based solely upon the question of fact. The jury, as well as the trial judge, saw the witnesses and their manner of testifying, and were better able to judge of the credibility of the witnesses than is this court. At most, it is a case in which there. was some conflict in the evidence. It seems to me that the holding of the court is invading the province of the jury.

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