120 Neb. 598 | Neb. | 1931
Lead Opinion
The plaintiff in error, R. T. Cooper, who will hereinafter be designated as defendant, was charged with forging the name of “George Vana” on the back of three checks and with uttering the three forgeries. He was convicted of the three forgeries, but was found not guilty of uttering the forged indorsements. At the time of the alleged offenses and for a number of years prior thereto, the defendant was employed by Black Brothers Milling Company, as agent and manager of their elevator at De Witt. As such agent and manager he had authority to buy grain and to pay for the same with their checks, and he is charged with issuing three checks to one “George Vana,” which represented no actual transaction, and forging “George Vana” upon said checks. The defendant entered a plea of not guilty and upon a trial he was convicted of the forgeries as above
The defendant urges a reversal of the judgment of the trial court for that it was prejudicially erroneous for it to refuse to grant a continuance of ten days for the defendant to prepare for trial. Summarized, the reasons urged for a continuance by the defendant were: His inability to raise money to pay his attorneys; their refusal to proceéd without their fee; and his inability to securé other counsel. It is also shown that, although diligent in his efforts, only two days were left after procuring counsel to prepare for trial. The record also discloses that the complaint was filed in the county court on November 18, 1929, and that on November 23, 1929, he was arrested and taken before said court; that, represented by the same attorney who represented him upon the trial, he sought and was granted a continuance until November 27, 1929, to prepare for the preliminary hearing; that upon the hearing numerous witnesses were examined. The record further discloses that the books of Black Brothers, which were made by him, and which he complains he was unable to properly inspect and examine, were in court at that time. It does not appear that he was prevented from an examination of them at any time. .From November 27, 1929, defendant was at liberty .on bond and his trial did not occur until January 13, 1930. He did not appear for trial at this session of the court as required by his bond, neither on December 20, 1929, nor on January 6, 1930, and his bond was forfeited. Upon giving a new bond on the same day, the forfeiture was vacated and his trial set for January 13. He did not then apply for the appointment of an attorney as provided by statute for indigent persons charged with criminal offenses.
Every person accused of crime and his attorney are entitled to reasonable time in which to prepare for trial after the prosecution is commenced. What is a reasonable time in which to prepare for trial after the prosecution is commenced must be determined from all the facts and circumstances of the particular case. 16 C. J. 449. The trial
There is criticism of the instruction of the court to the jury on the question of reasonable doubt. The defendant asserts that the instruction as given limits the reasonable doubt to the evidence adduced and excludes reasonable doubt arising from the lack of evidence. It is true that the defendant was entitled to the benefit of any reasonable doubt arising from the lack of evidence. However, the jury were instructed by other instructions that evidence was required to prove defendant guilty beyond a reasonable doubt before they could find him guilty. This would indicate to the jury that a lack of evidence would create this doubt. Heretofore we have said: “The court did not say that a reasonable doubt, to authorize an acquittal, must be one arising from the evidence alone, but merely told the jury that to produce an acquittal it must be a reasonable doubt arising from a candid and impartial investigation of all the evidence in the case. If the jury did that, it would reveal to them any lack of evidence to sustain a conviction, and if any such want of evidence was found there could be no conviction.” Bartley v. State, 53 Neb. 310, 360. The omission of which complaint is made in the present instance is not necessarily reversible error. Hiller v. State, 116 Neb. 582. In a recent opinion it was said: “It is not incumbent upon the court in every case to instruct the jury that a reasonable doubt may arise from want of evidence
Misconduct , of the assistant county attorney in his argument to the jury is assigned by the defendant as reversible, error, because he contends the statements were prejudicial and not warranted by the evidence. The argument in question was made by an attorney appointed by the court to assist the county attorney. The judges of this- court are unanimous in their opinion that the argument of the attorney was misconduct on his part. There is a difference of opinion as to whether or not the misconduct of counsel was prejudicial to the defendant. It is necessary to a discussion of the question that we set out the statements and argument of counsel to which defendant excepts. In the course of the state’s closing argument to the jury, the special assistant to the county attorney spoke as follows:
“As you go along here, to arrive at your verdict, gentlemen, you are going to do one of two things; you are going to convict Bob Cooper of forgery and uttering this forged instrument on every count, or else you are going to convict Mr. Sherman, that fine old gentleman here, of perjury, lying from this witness-stand. You are either going to convict Bob Cooper of forgery, or else you are going to convict Frank Havlovic of perjury. You are either going, to convict Cooper of forgery, or else you are going to convict all of these witnesses that we had on the stand of .perjury.”
The writer is of the opinion that the remarks quoted are not justified by the evidence; that they were prejudicial and inflammatory. We do not find it justified in the books. In fact, there is no justification for the above language. It was not the province of the jury, either directly or indirect
Let us consider the fairness and impartiality of the special counsel assisting the county attorney. The foregoing quotation was soon followed in the same argument by this: “Now, why does Bob Cooper lie about that'if he is this little ignorant farmer boy?” To which timely objection was made by defendant’s counsel. Thereupon the court rules as follows: “The word ‘lie’ isn’t a very pleasant word, it doesn’t sound very well, but counsel is permitted to use any argument that is adduceable from the evidence, and if he happens to use a word that doesn’t sound particularly euphonious, it is not grounds for obj ection if it is based on the evidence, of course.” The evidence does not justify the statement, augmented and strengthened by the ruling of the court. The evidence was in conflict and presented a question of fact for the jury. Then followed with some intervening sentences this statement: “This mán came in here and he needed cash, and so Bob digs down in his pocket, this man that is working for a hundred dollars a month, understand, and, my gracious! he has unlimited cash. You could tell that by the clothes he wore up here. I
From this we pass to the impassioned peroration of the state’s attorney. Here it is: “You are going to say, ‘Bob Cooper, you are guilty on count one; Bob Cooper, you are guilty on count two; Bob Cooper, you are guilty on three and four and five and six,’ or else you are going to publish to all the people in this courtroom and to Bob Cooper’s neighbors around there in that county that Fred Sherman, that fine old gentleman, committed perjury from this witness-stand, that Frank Havlovic committed perjury from this witness-stand, that Louis Skrdla, who is one of-Bob Cooper’s best friends, committed perjury from this witness-stand, and that George Vana, another friend, committed perjury from that witness-stand, or that his good friend, William Kreuscher, committed perjury from that witness-stand — one of the most infamous crimes that a man can commit. Now, take your choice, gentlemen, convict Bob Cooper who has been plainly shown guilty by this evidence, or convict these innocent men, among the very salt, the very best, we have in Saline county, of testifying falsely under oath from this witness-stand.” The defendant’s attorney objected to this last statement as prejudicial and not warranted by the evidence. Thereupon the court rules as follows: “It may reasonably be deduced. I suppose counsel is allowed considerable latitude.” Timely and almost continual objection was made to this line of argument, but it continued throughout the trial, with the apparent acquiescence and approval of the court. The -court should have
This court has recently reversed the judgment and remanded civil cases for retrial for the misconduct of the attorney in his argument to the jury. In Hall v. Rice, 117 Neb. 813, this was done. Judith Hall had brought action against defendants Rice and the Liggett Company, a corporation, for damages for false imprisonment and slander. A judgment on the verdict for $5,000 was reversed because plaintiff’s attorney referred to the defendant company as “a corporation without any feeling or soul,” as & “big corporation,” as consisting of 440 stores, as “rich clients,” and to the witnesses for the defendant as “New Yorkers.” The language of that opinion is so applicable here that we quote at length, beginning with the quotation from Ashland Land & Live Stock Co. v. May, 59 Neb. 735, which is as follows: “We have little patience with counsel who deliberately seek to achieve success by lawless methods; and we do not hesitate, in any case, to deprive them of advantages thus obtained. In the performance of professional duties, counsel should endeavor always to- conform their own conduct to the law which they have been commissioned to assist in administering.” The court then continues in the application to the case under consideration, as follows:
“In the trial of every contested lawsuit, there is abundance of opportunity, growing out of the material facts and circumstances of the case, for the display of extraordinary talent and the exercise of adroitness and finesse without resort to- illegitimate methods tending only to arouse the passion and prejudice of the jury. It is of greater importance that the administration of justice be regular and orderly, than that counsel be afforded an opportunity to exhibit their peculiar- prowess in the use of questionable methods.
“We are not able to determine what influence, if any, the improper argument of counsel had upon the jury, but it was well calculated to distract their attention from the real issues, and the refusal to grant a new trial on this ground was prejudicial error.”
It is regretted .that the judgment of the trial court must be reversed, necessitating another trial of this cáse. Violators of the criminal laws should, be vigorously prosecuted, but there is a vast difference between legitimate prosecu
Reversed.
Dissenting Opinion
dissenting.
I concur in the admirable exposition of the majority opinion which shows there was no prejudicial error in the record from the beginning of the long trial below until the assistant prosecuting attorney made his argument to the jury, but I take radical exception to the reversal on the ground of his misconduct.
Without perversion of the truth and the law a conviction was inevitable. Setting aside the only just and proper verdict that could have been rendered under the evidence does not inflict punishment on the offending attorney who abused his privilege in addressing the jury but does visit his misconduct on the innocent public and does cast reflections on the administration of justice.
It is a strange anomaly of the law, as administered by the majority, that juries are permitted to determine from evidence the momentous issues of liberty and imprisonment and at the same time and in the same prosecution are not trusted to discriminate between mere argument containing intemperate and unwarranted language of a prosecuting attorney and truthful testimony of disinterested witnesses under oath.
Where the entire record of a criminal prosecution clearly shows that misconduct of the prosecuting attorney in addressing the jury did not mislead them in arriving at their verdict of guilty or prejudice accused, the reviewing court should treat such misconduct as harmless error as directed by the statute which declares:
“No judgment shall be set aside, or a new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission, or
I made “an examination of the entire cause,” and I say with conviction there was no prejudicial error or miscarriage of justice in the proceedings and sentence. Under the evidence a verdict of not guilty would have been a travesty on justice and a reproach to the law.
Defendant, R. T. Cooper, was charged with forging the name of “Geo. Yana” on the back of each of three bank checks which were drawn by “Black Bros. Flour Mills Elevator, by R. T. Cooper,” in favor of “Geo. Vana,” on the “Farmers & Merchants Bank, DeWitt, Nebraska,” and were payable at the “First National Bank, Beatrice, Nebr.” The dates of the checks and the amounts were respectively as follows: October 22, 1928, $55.80; October 29, 1928, $55; November 15, 1928, $59.16. For a number of years, including those dates, defendant was an agent of Black Brothers and in that capacity managed for them an elevator at DeWitt. He had authority to buy grain for them there and to pay for it with their checks. The truth of the charges was proved beyond a reasonable doubt. Defendant testified in his own behalf and admitted that he drew the checks; that he indorsed Vana’s name on the back of each; that he banked the checks in his own name; that he received the proceeds. In explaining these remarkable transactions he testified in effect that Vana delivered three loads of wheat at the elevator and that each check represented the price of a load; that two of the loads were received in payment of feed or grain formerly purchased by Vana who received payment for the third load in cash from defendant personally; that defendant indorsed the name of Vana with the latter’s consent; that it was defendant’s custom, known to his employers, in these and other like transactions, to indorse on the back of the check the name of the payee; that he did so without any attempt to imitate the payee’s handwriting; that he
In the light of evidence that proves guilt with unerring certainty, as it does in this case, why should jurors be suspected of resorting to obvious unfair argument in arriving at their verdict 1 The unwarranted statements reproduced in the majority opinion and the cruel remarks concerning the faithful wife who appeared in court on behalf of her husband in a time of peril reacted against the prosecution without harming the accused. Indignation that moved reviewing judges did not escape the jurors. The trial court not only treated the objectionable statements of counsel as argumentative matter, as shown by the rulings on objections, but the jury were instructed in writing that, in coming to any conclusion, they should be governed alone by the evidence in the light of the instructions; that they had no right to indulge in speculations, conjectures or inferences not warranted by the evidence. They were also directed to entirely disregard any remarks of counsel not warranted by the evidence. The misconduct condemned by the majority had nothing to do with the verdict.