State v. Lower

The opinion of. the court was delivered by Burch, J.: The defendant was convicted of robbery in the first degree, and appeals. [670] Complaint is made of the conduct of the judge of the district court in cross-examining witnesses. It is said there was no occasion for interference. The court was privileged to determine that question for itself. Even if the examination covered the same ground as the examination by counsel, it may have served to confirm the court in its estimate of the evidence, and thus better qualify it to rule on a motion to discharge, should such a motion be presented, and to rule on a motion for a new trial, should it become necessary. It is said the manner in which the examination was conducted was prejudicial to 'the defendant. If so, the facts should have been brought on the record by affidavit in support of the motion for new trial. Complaint is made that the court instructed the jury on the subject of robbery in the first degree only, and omitted to instruct on the subject of attempt. Counsel evidently preferred the case should be submitted on the theory of robbery or no robbery, and waived an instruction with reference to attempt by forbearing to request it.. Besides that, the evidence indicates that if any crime were committed, the completed crime of robbery was committed. Complaint is made that the verdict of guilty was not sustained by sufficient evidence. The testimony for the state covered all the elements of the crime, and beyond that this court may not inquire. The judgment of the district court is affirmed.