53 Neb. 214 | Neb. | 1897
.This was a prosecution under section 20, chapter 50, Compiled Statutes, for unlawfully keeping for purpose of sale, without a license, certain intoxicating liquors. The accused was convicted, and from the sentence imposed upon him, error is prosecuted to this court.
Application was made to the district court for the appointment of counsel to defend the accused, which request Avas denied. A reversal cannot be had on account of this ruling for several reasons: First — The assignment of counsel to make the defense was based upon the alleged poverty of the accused. The bill of exceptions contains no evidence tending to establish that he had neither money, property, nor funds with which to employ or secure counsel to make his defense. So far as this record discloses it may have been proven to the satisfaction of the court beloAV that the prisoner possessed ample means with which to procure the assistance of an attorney. . It is true the transcript contains an affidavit of poverty, but it cannot be considered, since it is not incorporated in the bill of exceptions. (Minick v. Minick, 49 Neb. 89; Rosecrans v. Asay, 49 Neb. 512; First Nat. Bank of Madison v. Carson, 48 Neb. 763; Hudson v. Pennock, 48 Neb. 359.)
The accused challenged the entire panel or array of petit jurors for the term of court at which he was tried, on the ground that they were not apportioned among the several precincts of the county as provided by law, which motion was overruled, as were likewise the several challenges of jurors for cause made by the accused. Those rulings are now complained of but they are not available, because the evidence' adduced regarding said matters is not properly preserved by the bill of exceptions. What purports to be the voir dire examination of the jurors, the challenge to the array, and certain affidavits and certificates of the county clerk, are included in the bill of exceptions, but they are not authenticated by the certificate of the trial judge. He merely certifies “that the foregoing is all the evidence offered or given by either party on the trial of the cause.” This is insufficient to-show that the bill of exceptions contained either the testimony on the hearing of the challenge to the panel, or the voir dire examination of the jurors. Those matters did not occur during, but preceded, the trial.
The giving of the following instruction is alleged as error:
“7. You are instructed under- the statute governing this case, and heretofore quoted to you in these instructions, it is only necessary for the state to show that the defendant had the liquors described in the information, or some of them, in his possession. After this has been shown by the prosecution, the law presumes that such liquors were kept in violation of the law, unless the deféndant satisfactorily accounts for, and explains, the possession of such liquors; and if the prosecution has shown that the liquors, or any of them, described in the*217 information were found in the possession of the defendant, as alleged in the information, the burden of proof is then upon the defendant to satisfactorily account for and explain his possession of such liquor or liquors.”
Three criticisms upon this instruction are made by counsel, viz.: (1.) That section 20, chapter 50, Compiled Statutes, shows that the legislature intended that the presumption of guilt arising from the possession of intoxicating liquors should be indulged alone before the examining magistrate, and such presumption does not obtain in the district court. (2.) The instruction is erroneous because it shifts the burden of proof from the state to the accused. (3.) The instruction is in conflict with number 5 given by the court on its own motion. The first two objections, for convenience, will be considered together. .
Section 20 of said chapter 50 provides: “Hereafter it shall be unlawful for any person to keep for the purpose of sale without a license any malt, spirituous, or vinous liquors in the state of Nebraska; and any person or persons who shall be found in possession of any intoxicating liquors in this state with the intention of disposing of the same without license in violation of this chapter, shall be deemed guilty of a misdemeanor and, on conviction thereof, shall be fined or imprisoned as provided in section 11, of this chapter.” The section, after providing for the filing of a complaint for a violation of its provisions, the issuing of a warrant for the search of the premises, and for the arrest of the person described in such complaint and warrant, and what the officer shall do under the writ, declares that “the possession of any of said liquors shall be presumptive evidence of a violation of this chapter and subject the person to the fine prescribed in- section 11, unless after examination he shall satisfactorily account for and explain the possession'thereof, and that it was not kept for an unlawful purpose.” The instruction criticised correctly stated the effect of the foregoing provisions of the law under which
Instruction Bo. 7 in no manner conflicts with the principles announced in the fifth paragraph of the charge of the court, but one is in perfect harmony with the other.
No reversible error appearing on the record, the judgment is
Affirmed.