50 Neb. 351 | Neb. | 1897
An information was filed in the district court of Holt county, in which plaintiff in error was charged with the larceny of eighteen head of cattle in said county, the property of one Timothy Cross and of the value of $300. To this information, on being arraigned, the plaintiff in error pleaded not guilty, and as the result of a trial was convicted and sentenced to imprisonment in the penitentiary for a term of eight years. He presents the case to this court for review, alleging in his petition many errors, a number of which are in relation, to the action of the trial court in the discharge of a regular panel of jurors and matters incidental thereto, the ordering and summoning special panels of jurors, and overruling certain objections to the same. It was also assigned that the court erred in instructing the jury as follows: “A doubt, to justify an acquittal, must be a reasonable one, and must arise from a candid and impartial investigation of all the evidence in the case. A doubt produced by an undue sensibility in the mind of any juror in view of the consequences of his verdict is not a reasonable doubt, and the juror is not allowed to create sources or materials of doubt by resorting to trivial or fanciful suppositions and
“1. A district judge may, for any lawful cause, discharge a regular panel of the petit jury, and direct the sheriff to call other jurors to take its place.
“2. The fact that the jury was illegally drawn is a sufficient cause for discharging it from service.
“3. The fact that all, or nearly all, jurors upon the regular panel are disqualified from sitting in any case remaining to be tried at the term is a sufficient cause for discharging the panel.
“4. The provisions of section 465a of the Criminal Code are not exclusive, but are to be construed in connection with section 664 of the Civil Code.
“5. Therefore, when the causes exist which authorize*354 the court to order a special venire under section 465a of the Criminal Code, the court may, instead of so doing, in its discretion, — the regular panel being disqualified from sitting in other cases during the term, — discharge that panel and direct a new jury to be drawn under the provisions of section 664, Code of Civil Procedure.
“6. A rule of court is an order made by a court having competent jurisdiction, and therefore under section 8, chapter 5, Compiled Statutes, in a district where there are two district judges, the court may, by special order, direct a jury of less than forty-eight to be drawn; such special order being a hule’ within the meaning of that section.
“9. In a criminal case it is not erroneous to direct the jury that its oath imposes upon it no obligation to doubt where no doubt would have existed if no oath had been administered. Spies v. People, 12 N. E. Rep., 865, 17 N. E. Rep., 898, and 122 Ill., 1, followed.
“10. Where no error appears in the record of a criminal case, and the sentence imposed is one warranted by the statute, it will not be reduced by this court because of apparent undue severity. To so reduce it would, in such case, be an act of clemency, and not a judicial review of the trial; and the exercise of such clemency is a power reposed by the constitution in the governor, and not in this court.”
It appears that the plaintiff in error was arrested January 28,1896, was given a preliminary hearing before the county judge of Holt county on February 15, 1896, and was held to appear before the district court, which was then in session, having convened on the 8th day of February, 1896. On the 17th of the same month the information was filed in the trial court. On the 18th the plaintiff in error was arraigned and entered a plea of not guilty. According to an affidavit accompanying the motion on behalf of plaintiff in error for a continuance, the case was, on the 19th of February, set for trial on the 25th. On the latter day the first motion for a continu
The rule that in a civil action an admission that the proposed witness would, if in court, testify as stated in an affidavit filed -with a motion for a continuance of the cause, coupled with an agreement that the affidavits be read during the trial as evidence of the absent witness, may be sufficient to do away with the necessity for or right to a continuance and relieve the denial of one, if any error, was announced in Burris v. Court, 48 Neb., 179, but has not been settled in a direct criminal proceeding. The witnesses whose evidence was desired in the case at bar were, at the time of the motion for a continuance on the ground of their absence, without the jurisdiction of the court, and were not within the reach of its process; hence there was no denial, in the refusal to grant a continuance, of the constitutional right of one charged with a felony “to have process to compel the attendance of witnesses in his behalf” (Constitution, sec. 11, art. 1), or the statutory one given by section 461 of the Criminal Code, wherein it states that “any person accused of crime amounting to a felony shall have compulsory process to enforce the attendance of witnesses in his behalf;” for such process would have been futile and its issuance void of results. It was a withholding, at most, of the opportunity of obtaining the attendance- of witnesses without the process of the court, or to take their depositions, this last being accorded to parties charged with crime by section 462 of the Criminal Code. “A continuance, according to the general practice, may be refused if the adverse party will admit that such witness would testify as is supposed by the party moving for a continuance.” (Wharton, Criminal Pleading & Practice [9th ed.], sec. 595, and cases cited in note 3.) The above is the rule at common law where the witness is beyond the jurisdiction of the court. (4 Ency. Pleading & Practice, 865-6, and cases cited in note 2 to last page; also, page 868 and note 1.) In some states the rule
Affirmed.