Brown v. State, 9 Neb. 157

Brown v. State

9 Neb. 157 | Neb. | 1879

Maxwell, Oh. J.

The plaintiff in error was convicted of murder in the first degree at a special term of the district court of Adams county, held in February, 1879.. He now assigns various errors in, the record, which will be considered- in their order.

*162The order calling the special term is as follows:

“ Pursuant to the provisions of-the constitution of the state of Nebraska, I hereby fix Saturday, February 15th, 1879, at 8 o’clock a.m., as the time for holding a special term of the district court in and for Adams county, 5th judicial district of the state of Nebraska, for the purpose of disposing of any and all business that may properly come before the court. The sheriff of said Adams county is also hereby ordered to summon from the body of the county of Adams sixteen good and lawful men having' the qualifications of and to serve as grand jurors. Also twenty-four good and lawful men having the qualifications of and to serve as petit jurors. All to be and appear at the place of holding court in the town of Hastings, in said county of Adams, at 8 o’clock A.M., on said 15th day of February, 1879.

“ Witness rpy hand, at Hastings, in said county of Adams, the 10th day of February, 1879.

“William G-aslin, Jr.,

“Judge.”

Section 26, Art. XVI of the constitution, provides that “until otherwise provided by law, the judges of the district courts shall fix the time of holding courts in their respective districts.” The power thus conferred undoubtedly refers to regular terms of court, which had already been fixed by the judge.

A special term of court, for the transaction of all business that may come before it, may be ordered and held by a judge in any county in his judicial district upon the application of the county commissioners. Notice of such special term must be given at least twenty days previous to the commencement of the same. Gen. Stat., 260, Sec. 51. By the provisions of section 18 (page 255, Gen. Stat.), it is provided that “ a special term may be ordered and held by the district *163judge in any county in Ms district, for the trial of any criminal offense, if he deem it necessary. In ordering a special term, he shall direct whether a grand or petit jury, or both, shall be summoned.” The power to call a special term of court for the trial of criminal offenses is here expressly given, as also the power to direct whether a grand or petit jury, or both, shall be summoned. In calling a special term under the provisions of section 18,-it should be stated in the order that the term will be held for the'trial of criminal offenses. But the failure to do so, will not thereby render the term invalid. And the judge having authority under the statute to call the special term, the fact that he recites in the order that he called said term in pursuance of the provision of the constitution will not thereby render the order nugatory, no more than a correct judgment would be affected by superfluous matter which did not affect its validity, so far at least, as the trial of criminal offenses is concerned. The order therefore is sufficient to justify the trial of the plaintiff in error at that term.

The authority of a judge to order the sheriff to summon a grand and petit jury may well be questioned. The statute provides the mode of selecting jurors, and this mode should be adhered to as far as possible. As was well said by this court in the case of Burley v. The State, 1 Neb., 397, “the grand jury must be selected in the manner prescribed by the law. There is no security to the citizen but in a rigid adherence to the legislative will as expressed in the statutes for our guidance.”

Section 664 of the code of civil procedure provides that “ whenever the proper officers fail to summon a grand or petit jury, or when all the persons summoned as grand or petit jurors do not appear before the district courts, or whenever at any general or special *164term, or at . any period of a term, for any cause, there is no panel of grand jurors or petit jurors, or the panel is incomplete, said court may order the sheriff, deputy sheriff, or coroner to summon without delay good and lawful men having the qualifications of jurors,” etc. Gen. Stat., 643.

Section 405 of the criminal code provides that “ after the discharge of the grand jury it shall be lawful for the court, when it shall be deemed necessary, to order the sheriff to call together a new grand jury from the bystanders or neighboring citizens,” etc. Gen. Stat., 815.

This is a power that should be very sparingly exercised by a court. The object of selecting a jury in the manner provided by the statute is to avoid bias, partiality, and favoritism. And it is only in the cases pointed out by the statute that a court can order a grand jury to be summoned by the sheriff. The court may, however, when necessary, order as many talesmen to be summoned as may be necessary to fill the panel with unobjectionable jurors.

But objections to the mode of selecting the jury must be made by challenge or plea in abatement. After the accused has pleaded to the indictment, it is too late to object that the jury were not legally summoned. When a judge of the district court calls a special term of court, and desires a grand or petit jury, it is his duty in the order to direct the summoning of such jury. The jury must then be selected in the same manner as for regular terms of court. But no objections having been made to the manner of selecting the grand and petit juries, the error is therefore waived.

A number of instructions were given by the court, but one of which will be considered :

“6th. If you find from the evidence and circumstances in the case the accused did the shooting as charged, *165you have a right to presume therefrom that he intended to do it, and imply malice therefrom, as it is a legal presumption he intended to do what he actually did. In law, a rifle, gun, or pistol, loaded with powder and ball, and used’ in its ordinary way, is a deadly weapon. And should you find the accused committed the homicide with a rifle, gun, or pistol, you have a right to presume malice therefrom, and it is incumbent on the accused, by way of justification, excuse, or otherwise, to remove this legal presumption.”

Had the fact of the shooting alone been proved this instruction would have been correct. But the plaintiff had testified in the case, in substance, that he had acted in self defense. His testimony must be submitted to the jury and given such credence as they may. think it entitled to. But this instruction virtually withdrew that question from them, and must have been prejudicial to the accused; and for this reason alone the judgment of the district court is reversed and the cause remanded for a new trial.

Beversed and remanded.