92 Neb. 211 | Neb. | 1912
The defendant, who is plaintiff in error here, was convicted in the district court for Lancaster county of the-crime of embezzlement. He urges several grounds on which he thinks he is entitled to a reversal of the judgment.
1. The first objection is as to the impaneling of the grand jury which found the indictment. Tt is said that the jury which was impaneled for tile first term of the year 1911 was selected from the old list prepared during the preceding year. Tt appears that a plea in abatement was filed upon this ground, but the record does not show that any action was taken by the court upon this plea. After
2. The next objection is that the indictment is not subscribed by the foreman of the grand jury, but is subscribed by the county attorney. Section 408 of the criminal code provides that, when indictment is found, the “foreman shall indorse on such indictment the words, ‘A true bill,’ and subscribe his name thereto as foreman.” This was done in this case, and was all the signature necessary, and the signature of the county attorney, it appears, neither adds to nor detracts from the force of the indictment.
3. It is contended that the indictment “does not state facts sufficient to constitute an offense under the laws of the state of Nebraska.” The indictment is drawn under section 121 of the criminal code. Under that section the agent of any private person or any copartnership or any incorporated company or any joint stock company who shall do certain things shall be guilty of embezzlement. It is contended that the indictment does not allege that this defendant was the agent of any of these. It alleges that “the defendant (naming him), * * * then and there being the agent of one Lillian Casey, a private person, * * * did * * * receive from said Lillian Casey a certain draft.” The indictment describes the principal for whom the defendant was acting (as agent) as a private person, and afterwards in every instance refers to her as
4. The*, next objection is that the court erred “in appointing an unsworn, nonresident attorney to aid in the prosecution.” The county attorney under the direction of the court procured one Robinson to assist in the prosecution. Mr. Robinson was a resident of Kansas City, Missouri, and appears to be a member of the bar of that state. It is objected that the attorney so selected was not a member of the bar of this state, and had never taken the oath required of an attorney who practices in this state. In McKay v. State, 90 Neb. 63, our statute authorizing the county attorney to procure assistance in the trial of felony cases is quoted and construed. The former decisions of this court, both those rendered before the enactment of the present statute and the later decisions, are reviewed, and it is held that the county attorney may procure such assistance under the direction of the court, but that private individuals who are interested in the prosecution are not allowed to select such assistant for the county attorney. Section 3, ch. 7, Comp. St. 1911, provides: “Any practicing attorney in the courts of record of another state or territory, having professional business in either the supreme or district courts, may, on motion, be admitted to practice (for the purpose of said business only) in either of said courts, upon taking the oath aforesaid.” No doubt the statute authorizing the county attorney to procure assistance in the trial of criminal cases contemplates that his assistant shall be a duly qualified attorney, and the selection of such an assistant must be under the direction of the trial court who will see that he is duly authorized to appear as an attorney at law. If the attorney so selected is a member of the bar of this state, he will realize the importance of the duties he is to perform under the provisions of our statute, and under his oath as a member of the bar will have continually in mind the duties of that important office as prescribed in section 5
The abstract in this case shows that counsel for the defendant in the motions and objections made in the trial of the case recited that Mr. Robinson was a nonresident and was unsworn, but these recitals do not establish the fact, and the abstract does not show, that section 3 above quoted was not complied with by the court. The presumption is that the court performed its duty in that regard. It is further insisted that Mr. Robinson had been retained by private individuals to prosecute this case, and that he had been by them paid at least in part for his services. The abstract shows that Mr. Robinson renounced any employment by private individuals, and returned all fees that they had paid him for his services in this case. Whether an attorney who had been procured by the county attorney, under the direction of the court, to assist in the prosecution, for compensation to be paid by the county, would be disqualified by receiving additional compensation from private individuals was not considered or determined in McKay v. State, supra, and it is not necessary to determine that question in this case for the reason above stated. It is the duty of the trial court to see that proper selection is made in the interest of the state, and for the promotion of justice in determining the guilt or innocence of the accused, and the presumption is that the trial court has properly exercised its discretion in that regard.
. 5. It is objected that the evidence is not sufficient to justify the conviction. The indictment charged that the defendant, being the agent of one Lillian, Casey, a private person, “did by virtue of such employment as agent * * * receive from said Lillian Casey a certain draft, the property of said Lillian Casey” (setting it out in full) ; that the draft was indorsed by the said Lillian Casey, and that the defendant afterwards, “in the county
6. It is contended in the brief that Mr. Robinson, while assisting the county attorney, was guilty of misconduct prejudicing the defendant and requiring a reversal. This question of misconduct of the. prosecuting attorney was, so far as the abstract shows, first presented to the trial court in an affidavit of the defendant filed in support of his motion for a new trial. This, of course, was too late to raise such objections as these. If the prosecuting attorney attempted to take any unfair advantage of the. defendant in the course of the trial, the matter should at once be called to the attention of the court. The trial court has ample power to protect the defendant in his rights, and the presumption is that, if requested, this would be done. 'This affidavit, filed upon the motion'for a new trial, states that the prosecuting attorney, “when admonished by the court at the request of defendant, emphasized the misconduct and later desisted from it.” This statement of itself would prevent the defendant from now urging the conduct of the prosecuting attorney as ground for a new trial. How or to what extent he “emphasized the misconduct” is not stated, and, if he “desisted from it” when admonished, the remedy which the law gives the defendant appears to have been effective. Very much, if not all, of the language of the prosecuting attorney now complained of appears to be such as is generally supposed to be within the line of legitimate argument.
7. Several instructions given by the court are complained of. It is said that instruction No. 2, which states “the material ingredients of the offense,” fails to state
In instruction No. 3 the court stated that “it stands admitted” that certain things took place, reciting them, and it is contended that this was error on the part of the court; but we cannot see that the defendant was prejudiced thereby, since he himself testified to the things that the court stated to the jury were admitted, and he was corroborated in this regard by other witnesses, and not dispirted by any. Of course, the plea of not guilty put some of these facts in issue, but we cannot see that the instruction ivas prejudicial in view of the condition of the evidence in the record.
It is complained that the sixth instruction “takes from the jury the facts with reference to venue.” In that instruction the court told the jury: “Whether or not this county and state is the proper place for the prosecution of this action is a question of law with which the jury has nothing to do, and you should not consider it.” In the third instruction the jury are told: “Whether or not at the time and place alleged in the indictment he converted
If the jury found that the defendant converted the money which he received upon the draft to his own use, and formed the intention then and there to deprive the owner of the same, and all this was done at the time and place as alleged, then the action was rightly brought in Lancaster county, and the jury would not be justified in rendering a verdict of not guilty because they thought the law ought not to allow the action to be brought in that county; In the light of these three instructions, this appears to be the idea of the court, and it seems clear that the jury must have so understood it, although the clause quoted above from the sixth instruction is perhaps unusual.
It is urged that the instructions are incomplete; that “something has been left out, * * * the one thing that would entitle the defendant to any relief whatever in the hands of the jury.” It is not even stated in the brief what this one thing is. There is no claim that it was stated to the trial court, much less that an instruction was presented and asked that would cure the defect. The abstract shows that the court gave eight several instructions to the jury besides a complete statement of the allegations of the indictment. If it was desired that there should be
Not finding any error requiring a reversal, the judgment of the district court is
'Affirmed.