
    Albert Eggers v. State of Nebraska.
    Filed July 1, 1925.
    No. 23517.
    Robbery: Insufficient Evidence. The evidence has been examined, and held insufficient to sustain the verdict.
    Error to the district court for Douglas county: Charles A. Goss, Judge.
    
      Reversed.
    
    
      W. J. MeNichols and Gerald F. Harrington, for plaintiff in error.
    
      O. S. Spillman, Attorney General, and Lloyd Dort, contra.
    
    Heard before Morrissey, C. J., Rose, Dean, Day and Thompson, JJ.
   Morrissey, C. J.

Defendant was tried in the district court for Douglas county upon an information charging him with having robbed one John Sawicki of $15. The jury returned a verdict of guilty, but included in the verdict a recommendation to the court that defendant be paroled. From a judgment and sentence upon the verdict, defendant prosecutes error to this court.

The only assignment which we deem it necessary to consider is the one which challenges the sufficiency of the evidence to sustain the verdict. The complaining witness was deprived of his money by some person in the manner which he detailed to the jury. He undertook to identify defendant as the guilty person, and on such attempted identification the verdict of guilty was returned.

Before his arrest on this charge defendant had not been charged with a violation of any law. The jury were mistaken in thinking that, on their recommendation, the court could grant defendant a parole. Had they known that the court could not do so, it is probable that they would not have found a verdict of guilty. The record presented to us strongly indicates that the complaining witness was mistaken in his identification of defendant as the party who robbed him. In a supplemental motion for new trial, he attempted to correct his testimony. The record presented is so lacking in competent proof to sustain the verdict that the judgment cannot be permitted to stand.

The judgment is, therefore, reversed and the cause remanded.

Reversed.  