116 Neb. 440 | Neb. | 1928
Lead Opinion
An information was filed against Lovane Fitzsimmons in Dodge county by the county attorney, wherein Fitzsimmons was charged with having maliciously and feloniously shot Earl Foote, October 23, 1926, with intent to kill. The jury found the defendant guilty. Upon his motion for a new trial being overruled, the court imposed a sentence of one year in the state penitentiary. The defendant prosecutes error.
At the outset we are confronted by an issue which is raised by the defendant in respect of objections to the appointment of the Honorable John F. Rohn to assist county attorney Mahlin in the prosecution, for reasons hereinafter appearing. And it is obvious that, in view of the record before us, the issue so raised must control our present decision without reference to the merits other than that contained in the opening paragraph. Before the trial began, objection to the appointment of Mr. Rohn was made. The defendant’s motion was overruled and the case proceeded to trial with the result herein above noted.
More than 100 pages of legal cap are devoted to affidavits which have to do with the issue in respect of the appointment complained of. In . his affidavit J. C. Cook, defendant’s leading counsel, avers that Mr. Rohn is an associate in the firm of Abbott, Rohn & Dunlap, and that this association was then, with affiant, actively engaged in the defense of Fitzsimmons. In support of their argument the defendant’s counsel introduced in evidence a photograph of the door leading into the offices of the above-named association on which the following names appeared for about 10 years last past, namely, “Abbott, Rohn & Dunlap, Lawyers,” and on the door, immediately below, are the following names: “C. E. Abbott, J. F. Rohn, R. S. Dunlap, J. P. Corbett.”
In his affidavit Charles E. Abbott, a practicing attorney at Fremont for 29 years, avers that, three months before the case was called for trial, he was employed to assist Joseph C. Cook, the leading counsel, in the defense of Fitz
The defendant in his affidavit avers that, on the morning when the case was called for trial, Mr. Rohn seated himself at the side of the county attorney, and that this affiant and some of the lawyers and others present remarked : “Well! the association of Abbott, Rohn & Dunlap is on both sides of this case.”
Mr. Rohn in his affidavit avers that he has had office arrangement with Abbott, and that the firm was known as Abbott & Rohn, and later as Abbott, Rohn & Robins, and subsequently was known as Abbott, Rohn, Robins & Dunlap,; that no partnership existed between Abbott and affiant except as to joint ownership of furniture, equipment, and the library and also “the business coming to said firm from and over foreign connections and in addition to that certain old matters which had not been completed;” that with the above exceptions the affiant and Abbott and
In view of the facts disclosed by the record, we cannot lend our approval to the participation of Mr. Rohn in the prosecution of the defendant. An association of persons, such as the record discloses Abbott, Rohn & Dunlap are shown to have been, cannot, under our practice, divide their forces and permit one member of the association
We do not think the defendant was fairly tried. It is an elementary proposition of our criminal jurisprudence that every person accused of crime shall have a fair and impartial trial; nor shall he be deprived of life, liberty or property without due process of law. Both the federal Constitution and our state Constitution contain the above guaranties. And it is one of the boasts of Anglo-Saxon civilization that every man, no matter what his estate or condition, shall have an impartial trial when he is charged by the state with an infraction of the criminal code. Coxbill v. State, 115 Neb. 634.
The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with the views expressed herein. .
Reversed.
Dissenting Opinion
dissenting.
I do not think there was prejudicial error in the appointment of Mr. Rohn to assist the county attorney in the prosecution of this action. The record discloses that Mr. Abbott, of counsel for the defense, and Mr. Rohn had been copartners in the practice of law; that the partnership had been practically dissolved, but not completely so. It seems that, so far as their law libraries, furniture and certain old business were concerned, the partnership continued; that, as respects new business, it was dissolved. It appears that even some months prior to the appoint
I do not wish to be understood as commending the appointment of Mr. Rohn as an assistant prosecutor, under the facts disclosed, but I utterly fail to see where defendant was prejudiced by such appointment and think that the judgment of conviction should not be reversed upon that, ground.