55 Neb. 294 | Neb. | 1898
Proceedings in error were brought to this court on behalf of Joseph S. Bartley from the judgment and sentence of the district court of Douglas county in an action in which he was charged and, on trial, convicted of the embezzlement of a sum of money, the property of the state. A hearing in this court resulted in an affirmance of the judgment and sentence. The opinion in which were embodied the arguments and conclusions on the different subjects of the litigation as then presented was filed January 3 of the current year, and reported in 53 Neb. 810-364. Subsequently a motion for a rehearing was filed and granted, and the cause has been again argued and submitted for decision.
We will not make any further statement of the case, or the facts and circumstances thereof, but refer the reader to the former opinion for such statement. It was a subject of complaint in the brief filed on rehearing that sufficient time had not been devoted to the examination of the record and the preparation of an opinion. It is true, as stated in the brief, that the record is quite large —contains 1,200 pages — and that extended and elaborate briefs were filed; but it must here be borne in mind that the argument in such briefs and orally — considerable more than the usual time was allowed for the latter —were of great and material assistance in the consideration and decision of the points of complaint which were discussed. Moreover, and finally, it is not a question of the number of hours, days, or weeks consumed or to be taken in the examination and adjudication of a cause, but of such a due consideration of the litigated matters, without reference to the time employed, as will result in a proper and just disposition of them and render true right to the litigants.
It is stated in the brief: “Expressions are used in the
It may be said here that aside from, and additional to, what has been formerly said on the point of the payment of the money drawn by the check, it has been further advanced in the brief for the state, and was of matters discussed in consultation, that the warrant in question bore' the indorsement of the plaintiff in error, by which he became liable, and the money was applied to, and effected the extinguishment of, this, as it may be styled, contingent liability.
It is further urged in this connection that we ignored in the former opinion the provisions of section 420 of the Criminal Code in which it is stated: “In every indictment in which it shall be necessary to make any averment as to any money, or bank bill, or notes, United States treasury notes, postal and fractional currency, or other bills, bonds, or notes, issued by lawful authority and intended to pass and circulate as money, it shall be sufficient to describe such money or bills, notes, currency, or bonds simply as money, without specifying any particular coin, note, bill, or bond; and such allegation shall be sustained by proof of any amount of coin or of any such note, bill, currency, or bond, although the particular species of coin of which such amount was composed, or the particular
In the matter of the complaint that the judge of the district court who presided during the trial of this case took too active, a part therein, in that he interrogated the witnesses, etc., we have carefully examined this matter again and discover that in a number of instances he asked questions for what plainly appears to have been the purpose of a more clear understanding of the admissibility or non-admissibility of testimony to which an objection had been interposed, that the ruling on the objection might be correct. Such actions were entirely proper. In a number of other instances the trial judge questioned witnesses and elicited testimony which bore more or less directly on the main issues. It is undoubtedly necessary that the judge who presides should acquire as full knowledge of the facts and circumstances of the case on trial as possible, in order that he may instruct the jury, and correctly, to the extent his duty demands, shape the determination of the litigated matters, that justice may not miscarry, but may prevail; and doubtless it- is allowable at times, and under some circumstances, for the presiding judge to interrogate a witness. The exact extent or when the exigencies may warrant an exercise of this right are matters which are not capable of very precise statement, but it may be said that the right here in question is one which should be very sparingly exercised, and generally counsel for the parties should be
Under the proposition that the district court of Douglas county had no jurisdiction of the action, the constitutionality of the “Depository Law” is argued at this presentation of the case, and it is in this connection also urged that the court will not apply the doctrine of es-toppel in a criminal case to any portion of the issues. We must again, for the reasons stated in the former opinion, and which we deem entirely sufficient, decline to enter upon a discussion of this point.
It was of the complaints strenuously urged in argument that the trial judge made in his charge, on the subject of reasonable doubt, the following statement: “You are not at liberty to disbelieve as jurors, if from all the evidence you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” It was and is insisted that this was vicious, for that its effect was to remove from the jurors the obligation of the oath which they had taken or that it freed them from such obligation. We will say here that in the charge in this case in one or two of the paragraphs the attention of the jurors was specifically challenged to the oath, its solemnity and its application to their acts and duties during the course of the trial, and their deliberations; but to return to the terms employed in the charge which we have quoted, a fair construction does not give them the import and significance which is imputed to them by counsel in the brief. They do not tell jurors to disregard the oath, but interpreted fairly and reasonably they do say that the parties to whom they were addressed shall act in all things, during their performance of their duties as jurors, as true
There was at the trial an instruction requested for plaintiff in error, and refused, in which was embodied the statement of the presumption of innocence of the accused, which is always present, and must have place in every trial of a criminal action, coupled with the further announcement that the presumption was a matter of evidence in faAror of defendant and to be so considered by the jurors. In the former opinion it was stated of the error which it was argued had occurred in this particular that the principle embraced in the request had been embodied and given in the sixth paragraph of the charge on the court’s own motion; also that the twenty-first paragraph of the charge, the one relative to a reasonable doubt, in its substance, as given, was sufficient to warrant the court in the refusal to read the request. It was at the second hearing in this court argued that the court was wrong in the position taken in the former opinion, and in this connection there was quoted in the brief a considerable portion of an opinion of the supreme court of the United States in the case of Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. Rep. 394, in which there appears an exhaustive and able discussion on the subject of the presumption of innocence of a defendant in a criminal
There were many other questions raised and urged in argument, and we have again carefully examined and considered all, inclusive of such as referred to alleged errors in the admission and exclusion of matters of evidence, and, after full investigation and consideration of each and all, must reach the conclusion before announced, that the record discloses no errors which call for a reversal of the judgment; hence the judgment and sentence must be
Reaffirmed.