86 Neb. 711 | Neb. | 1910
An information was filed in the district court for Harlan county charging plaintiff in error, together with Charles O’Brien and Virgil Woolrige, with the crime of grand larceny, by stealing, taking and carrying away certain goods and merchandise of' the value of $500 of the personal property of T. M. Logan,. committed in said
1. Before entering upon the trial plaintiff in error filed his affidavit setting out, among other things, the demand of the slate for separate trials of the three parties accused; the placing of O’Brien upon trial first; the submission of the evidence to the jury; that during said trial the name of plaintiff in error “was continually before said jury in connection with said cause, and that by reason thereof said jury has become disqualified to try his case; that most all of the other members of said jury so impaneled and not sitting in said cause were present during the greater part of the trial of the said Charles O’Brien and heard the testimony relating to this affiant’s case; that, by reason thereof, they, the said jury, have already prejudged this defendant’s case and are disqualified to. sit in the trial of said cause. Wherefore this defendant objects to going to trial in said cause before said jury, and moves the court for a continuance of said cause to the next term of the district court.” This affidavit was filed November 5, 1909, and on the same day an entry was made in the journal of the court, reciting the fact of the separate trials, the arraignment, and entry of a plea of not guilty for plaintiff in error, and which entry contains the following:
“And now on this 5th day of November, 1909, at the hour of 10 o’clock A. M., this cause coming on for hearing-on the affidavit of the said defendant for a continuance of this cause to the next term of this court and his objections to being put upon trial at this time, the court, being fully advised in the premises, is satisfied that the regular panel of jurors are competent to sit in this cause,*713 and that the said regular panel and bystanders have not become incompetent to sit as jurors in this cause by reason of having heard the evidence in the case of State v. Charles O’Brien, the said Charles O’Brien having been charged together with this defendant in the same information with the commission of said crime, therefore the court does overrule said motion and objection, to which ruling the defendant excepts.
“And now, at the hour of 10:30 o’clock A. M., of said day, the defendant and his said counsel being present in court, so that there would be no delay in said cause, and to assist the sheriff by securing the attendance of competent talesmen, the court directed the sheriff to summon 25 good and lawful men from the body of the county as talesmen, and no objections being made thereto'by the defendant or his attorneys. Now on this day, at the hour of 11:30 o’clock, counsel for the defendant appears and excepts to the order of the court requiring the sheriff to summon said talesmen. Said exception being taken after the sheriff had departed to comply with the said order.”
To the former portion of the above order it is shown that plaintiff in error then excepted, but we are not inclined to the belief that the unexplained delay of one hour was a Avaiver of the exception to the latter part thereof, and we will treat the whole as duly excepted to.
The question of law here presented is as to what Avas the statutory duty of the court in dealing with the condition then existing. It might, hoAvever, throAV some light upon the subject to refer to an affidavit of one of the counsel for the defense filed in support of the motion for a new trial, which, after reciting the facts of the trial of O’Brien, states that the county attorney, upon the return of the verdict in O’Brien’s case, demanded the immediate trial of plaintiff in error; the filing of the affidavit above referred to asking for the continuance of the cause on account of the disqualification of the jurors, owing to the fact that the evidence in the one trial would be the same as in the other; the fact that the other members of the
It is insisted by plaintiff in error that the court should
The section appears to have been enacted specially to meet cases of this kind, but it is claimed by the state that the court was not bound to follow the provisions of the section of the criminal code, above quoted, but that a compliance with, section 664 of the civil code would be sufficient, and cites Fanton v. State, 50 Neb. 351; Barney v. State, 49 Neb. 515, and Welsh v. State, 60 Neb. 101.
Section 664 of the civil code provides, in substance, that when no jury is summoned, or when all jurors summoned do not appear, or when for any cause there is no panel of jurors, or the panel is not complete, the court may
In Barney v. State, supra, the panel of jurors was discharged, for the reason that it was irregularly drawn, which left the court without a jury, and the provisions of section 664 of the civil code were followed, and the special venire was issued. Subsequently, when it was discovered that the members of the panel were disqualified by having heard the evidence in the trial of Barney’s co-defendant, the panel was again discharged, and, the court being without a jury, a new venire was issued for a third jury. In these respects that case differed from this, and the provisions of the civil code (section 664) were held to have been properly applied. We held that the provisions of section 465a were not exclusive; that the method provided by the civil code “applies to criminal cases, except as otherwise provided”; that by reason of the use of the words “it shall be lawful”, in section 465a, “the language of the section is not mandatory, it is simply permissive”; the conclusion being that “the two sections are not conflicting, the language of the later act is not man
Welsh v. State, supra, was where there was no jury previously summoned for the special term at Avhich the accused was to be tried. The court ordered a special A'enire under section 664 of the civil code. That action was approved, and we think correctly, as the conditions were such as Avere provided for by section 664 of the civil code, and not by section 465a of the criminal code.
Barber v. State, 75 Neb. 543, was where the facts Avere someAAdiat similar to those in the present case, except that the court discharged the jury panel because subsequent cases were to he tried upon facts testified to by witnesses in previous trials during the term, and which disqualified the jurors from sitting in the case about to be tried, instead of holding the regular panel, as Avas done in this case, and ordering a special venire under section 664 of the civil code. The question was presented, as here, when we said: “It is contended that the new venire should have been summoned under the provisions of section 465a of the criminal code. This contention has been considered and passed upon by this court adversely to the position of the defendant in the cases of Barney v. State, 49 Neb. 515, and Fanton v. State, 50 Neb. 351. With the rule established in these cases we are satisfied, and see no reason for disturbing the same.”
Those cases seem to close the door of inquiry, and the contention of plaintiff in error cannot be sustained. We cannot see that the case of Pflueger v. State, 46 Neb. 493, sheds any light upon this question.
2. The evidence shows that plaintiff in error was a clerk for Mr. Logan in a store-owned by Logan; that he carried a key to the store, opened and swept out i» the morning,
At the close of the evidence plaintiff in error asked the court to instruct the jury to return a verdict finding him not guilty, for the reason that the evidence was not sufficient to . nstain the charge of larceny, but tends to show that, if any crime was committed by him, it was not larceny, but embezzlement. The court refused to give this instruction. The same contention was presented in another instruction to the same effect, but submitting the facts to the jury with the direction that, if they found the facts to be practically as testified to, the crime, if any, would be embezzlement, and not larceny. This instruction was also refused, and. the action of -the court is as: signed for error. In this we all agree the court did not err. The provisions of section 121 of the criminal code, defining the crime of embezzlement, as applicable to this case, is to the effect that if any clerk, agent, servant, etc., shall embezzle or convert to his own use, or fraudulently make away with any goods of his employer “which shall come into his or her possession or cafe, by virtue of such employment,” such person, upon conviction, shall be punished as provided in the section.
Plaintiff in error was one of several clerks in the store. He was furnished with a key to the front door of the building, opened and closed the store morning and even
A case somewhat similar to this is reported in People v. Belden, 37 Cal. 51. In that case the accused was in the employ of McComb, the owner of a livery stable. Belden was employed by the month, and when the owner was not present he had charge of the stable, and was directed to let the horses out to persons applying for them in the absence of the owner. Belden usually slept in the stable, and was left in charge on the night the horses, alleged to have been stolen, were taken by him. He was convicted of the larceny, and appealed to the supreme court, contending that the crime was not larceny, but embezzlement. The court in the opinion say: “The question, therefore, upon the solution of which this appeal depends is, in whose possession were the horses while in the livery stable of McComb? To this question the evidence does not give a doubtful or equivocal answer. It was not á case of joint or mixed possession of McComb and the defendant. McComb had the possession of the horses'while he was at the stable, and it cannot, upon any theory consistent Avitli reason, be said that the possession changed whenever he was absent from the stable for an hour or a day. The defendant occupied only the relation of servant to McComb, and, although he had labor and duties to perform in respect to the horses, he was not entrusted with them, in the sense of the statute.” The judgment of conviction was affirmed. The same question was presented in People v. Wood, 2 Park. Cr. Rep. (N. Y.) 22, where the accused Avas convicted. Also in Powell v. State, 34 Ark. 693, and
¿5. Our attention is called to what is shown to he the misconduct of a witness, by the name of Morrison, who was guilty of improper conduct during the trial, showing a “pernicious activity” throughout the whole proceeding, and, finally, making an effort to assault counsel for plaintiff in error who was addressing the jury, and from which a high degree of commotion and excitement was. aroused, when one of the regular panel of jurors, but not sitting in this case, arose and made improper remarks. It is strongly insisted that this conduct and the accompanying disturbance had a terrifying effect upon the jury to the prejudice of plaintiff in error. It was, of course, within the power and duty of the presiding judge to have corrected any evil effects which might have followed as the result of those demonstrations. The proof of the conduct of those two persons is made by affidavit in support of the motion for a new trial, but nothing is shown as to the action of the court in the way of the protection-of its own dignity or the enforcement of the law by the punishment of the contempt. We cannot presume that the presiding judge was asleep, or that he had not the moral courage to maintain the dignity of the court and inflict upon both parties the punishment their conduct so justly merited. So-far as is shown, the culprits may.have been at once confined in- the county jail, where they belonged, and heavy fines imposed. There is nothing, aside from the opinion of counsel who made the affidavits, showing prejudice to plaintiff in error. The facts constituting the prejudice should have been made to appear of record. So far as is shown, the turbulent scene referred to may have had the opposite effect upon the jury. It is to be regretted that no showing was made by the county attorney
It is said in the brief presented on behalf of plaintiff in error that “the defendant is a young man and of a good family. No suspicion of wrong-doing had ever attached to his name before,” and it is insisted that the punishment imposed is excessive. We have been unable to find anything in the record as to the family relations of plaintiff in error or his age. The proprietor of the store, his employer, testified that he was a “good cleric,” and that his habits were good prior to his acts out of which the prosecution arose. The jury found the value of the stolen goods to be $250, which -we may assume to be their true value. The punishment imposed was imprisonment in the state penitentiary for the period of five years, to which is added the judgment for costs. When we consider that the more enlightened modern thought, the holdings and decisions of courts, the teachings of penologists, eminent in their profession, have now fully adopted the humane and beneficent rule that the infliction of penalties for violations of the criminal law’s are to be considered as in no sense a punishment, but rather for the reformation of the wayw’ard and the protection of society, and that the spirit of vengeance has departed from criminal procedure, we are persuaded that so long a sentence, for the act proved, cannot be justified.
The sentence pronounced by the district court will therefore be modified and the term of imprisonment fixed at two years, the judgment for costs to stand as entered. As thus modified the judgment of the district court will be, and is, affirmed, and the costs of this court will be taxed to plaintiff in error.
Affirmed as modified.