77 Neb. 782 | Neb. | 1906
James L. Gandy, hereafter called the defendant, was convicted of a violation of section 164 of the criminal code, which provides: “If any person shall attempt to corrupt or influence any juror or witness, either by promises, threáts, letters, money, or any other undue means, either directly or indirectly, every person so offending shall be fined in any sum not exceeding $500 or imprisoned in the penitentiary not more than five years nor less than one year.” From the judgment and sentence of the district court for Nemaha county based on such conviction he brings the case to this court by a petition in error. His petition contains a large number of assignments, but few of which will be considered in this opinion.
1. The first question to be determined is defendant’s contention that the trial court erred in. overruling his demurrer to the amended information. It is urged that the omission to allege that the defendant knew the person sought to be corrupted was a witness renders the information fatally defective. In support of this our attention is directed to the case of State v. Howard, 66 Minn. 309, where it was said: “An indictment for the crime of offering a bribe to a juror, under the provisions of Gen. St.
2. It is. also contended that the evidence does not support the charge contained in the information and is insufficient to sustain the verdict, for the reason that it shows conclusively that Fisher was not a witness within the meaning of section 164 above quoted. This requires us to determine who is a -witness within the meaning of the statute on which this prosecution is founded. A witness, in the strict legal sense of the term, means one who gives evidence in a cause before a court. Barker v. Coit, 1 Root (Conn.), 224. In 29 Am. & Eng. Ency. Law (1st ed.), p. 583, note, it is said a witness is “a person who, being present before a court, magistrate, or examining officer, orally declares what he has seen or heard or done relative to a matter in question.” When the books speak of a witness, they always mean one who gives oral testimony. United States v. Wood, 14 Pet. (U. S.) 455. In Bliss v. Shuman, 47 Me. 248, it was said: “The word witness is a most general term, including all persons from whose lips testimony is extracted to be used in any judicial proceeding.” If we were to apply this rule, it could not be contended for a moment that Fisher was a witness. It is our opinion, however, that the word “witness,” as used in the statute in question, should receive a broader and more general definition. 8 Words and Phrases, p. 7511, defines a witness to be one who has knowledge of a fact. See, also, State v. Desforges, 47 La. Ann. 1167, 17 So. 811. A witness is one who has knowledge of a fact or occurrence sufficient- to testify in respect to it. In re Losee’s Will, 34 N. Y. Supp. 1120. We are unable to find a broader and more general definition of the word than those above quoted. Applying this rule to the facts disclosed by the evidence in this case, Ave are satisfied that Fisher was not a witness within the meaning of the statute. He testified
3. It is further contended that tbe court erred in permitting tbe witness Fisher to testify, over proper objections, that tbe defendant offered him $500 to steal the power of attorney above mentioned. An examination of the information discloses that no such charge is ‘contained therein. Neither is that matter mentioned in setting out the facts constituting the crime charged. So while it is not necessary to determine this question, yet it is not improper for us to say that the rule is quite general that to receive evidence on the part of the prosecution of facts tending to prove other and extrinsic charges which relate
For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceedings according to law.
Reversed.