101 Neb. 229 | Neb. | 1917
The defendant was found guilty of accepting a bribe while acting as county attorney of Madison county, and was sentenced to imprisonment in the penitentiary from one to five years. He has brought the case to this court for review.
The first questions presented are as to the impaneling of the jury. It appears that there were two indictments pending against the defendant at the same time; both charging him with accepting bribes from respective keepers of disorderly houses in or near the town of Norfolk. The defendant was tried upon one of these indictments and found not guilty, and at the same term the case at bar was about to be tried, and the prosecuting attorney filed a motion “to discharge the regular panel of jurors summoned
The order of the court directing the sheriff to summon 24 jurors was authorized by section 8143, Rev. St. 1913: “Whenever at any general or special term, or at any period of a term for any cause there is no panel of grand jurors or petit jurors, or the panel is not complete, said court may order the sheriff, deputy sheriff, or coroner to summon without delay good and lawful men, having the qualifications of jurors.” Underbids order of the court the sheriff called 24 jurors, and the defendant then filed an objection “to the panel of petit jurors summoned for the trial of this cause by the sheriff of Madison county.” The grounds of this objection alleged by the defendant were because a list of persons from which this jury was drawn was composed of persons residing in one particular locality of the county, and none of the jurors were selected “from residents of Norfolk precinct which contains at least one-third of the population of the county,” or from six other specified precincts of the county. “The prisoner has the right to insist that the list of persons from which the panel is drawn be filled in due proportion from all of the precincts within the trial district, and not from a part only.” State v. Page, 12 Neb. 386. In the same case it is said that, if the county commissioners in preparing the regular jury list overlooked a precinct containing one-third of the whole number of persons in the trial district qualified to serve, the panel would be illegal, but in such case “the court has ample authority to provide a lawful jury under section
The next objection presented in the brief is: “The court permitted the introduction of evidence of the identical acts complained of in the former charge (trial), which had been found not true, and refused to permit the introduction of evidence of such acquittal.” The theory of the prosecution was that the defendant as county attorney adopted a plan or system of requiring each and all of the disorderly houses in the town to pay him a specified sum to prevent prosecutions. The first witness introduced by the state testified that he was a driver of a taxicab, engaged in carrying passengers from place to place in the town for hire, and that he, at the defendant’s request, took him to each
And, so in the case at bar, under the allegation that $75 Avas paid for such purpose by Meyers and McLimans, it Avas competent to prove that it was paid under a system by which all violators of the laws similarly situated were to make similar payments and were to be protected. This seems to be well supported by authority. Judge Wharton says: “When the object is to show system, subsequent as well as prior collateral offenses can be pnt in evidence, and from such system identity or intent can often be shown. • The question is one of induction, and the larger the number of consistent facts, the more complete the induction is.” Wharton, Criminal Evidence (10th ed.) sec. 146.
In Frazier v. State, 135 Ind. 38, the court adopted the following language quoted from text-writers: “A series of mutually dependent crimes may be shown where they tend to prove that they were committed under a system which becomes relevant to the inquiry.”
In Wallace v. State, 41 Fla. 547, the law is declared to be: “Where the crime in question is one of a system of criminal acts occurring, so near together in point of time and so nearly similar in means as to lead to the logical inference that they are all mutually dependent and committed in pursuance of the same deliberate criminal purpose and by means planned beforehand, evidence of such other acts is admissible, even though those acts amount to another criminal offense.” This seems to be the general rule.
Res adjudicata is a fundamental principle in civil cases, ■and the corresponding principle in criminal cases is that no one shall be twice put in jeopardy for the same offense. This distinction is stated by Judge Wells: “The principle —which is parallel to the principle prevalent as the fundamental rule in civil cases — is that no one shall be twice
But "in the present trial the defendant is not put in jeopardy of conviction of receiving bribes from Fern McDonald. The payment by her is not an element of the crime for which he is now tried. That evidence could not be omitted in proving the general plan and design under which the money was received from Nannie Meyers, and so far as such evidence is allowed it is only for the purpose of strengthening the evidence of the substantial charge now being-tried. The trial jury is not to be controlled by the consideration of what any other jury has or might have done upon the same state of facts. They are not expected to base their opinion of the weight of evidence upon the opinions of other men. Under the holding of Parker, C. J., above quoted, this evidence would not be excluded in the application of res adjudicata in civil cases. At all events it seems that receipt of such evidence cannot be said to put the defendant in jeopardy the second time for the same offense. We think the evidence of the receipt of bribes from Fern McDonald, tending as it does to prove the general system or plan of defendant, was competent. The fact that defendant was acquitted of that crime in the former trial is not to be considered as res adjudicata in this trial. While the forming of the plan and purpose of exacting money in .the nature of bribes from all of the disorderly houses of the town and vicinity would not of itself constitute a crime defined in our law and subject to punishment, the act of accepting a bribe being the substance of the crime so defined, yet the fact of forming and attempting to execute such a general plan would, if proved, strongly support the evidence of the definite crime charged. The state attempted to prove more payments of that nature by the witness Fern McDonald than by any other person. It appears also that in the former trial the state attempted to prove the same corrupt plan and purpose as was made
The statute authorizing the court to require the sheriff to call jurors from the bystanders or from the body of the county for the trial of a particular case should be made use of only when it is reasonably certain that the case to be tried will not be prejudiced by such method of selecting a jury. Under the circumstances in this case it would not in general be expected that a jury would be so selected. If the defendant is to be successively tried upon charges which in the law are regarded as distinct from each other, and yet which admit of the introduction of much of the same evidence to support the respective charges, great care should be taken to protect the interest of the state and the rights of the defendant against any prejudice that might have arisen from the former trial, and ordinarily both cases would not be tried at the same session of the court. Under our former decisions there has been no technical violation of the law in that regard, and yet it may well be doubted whether the results of the second trial may not have been in some degree influenced by the transactions in the former trial. Under such circumstances, if there were a sufficient number of trials in succession at the same session of court, the acquittal of an innocent defendant in all of the trials might not be as certain as the public interest requires.
There seems to have been some attempt made to show that there was a conspiracy among the keepers of these houses and their patrons to prosecute this defendant unjustly. So many of the witnesses were connected with these houses that this would have been an important matter if it had been established by the defendant. Many questions were asked by defendant’s attorney in the cross-examination of the plaintiff’s witnesses with this object in view, and there are many assignments of error in the brief predicated upon sustaining objections to these questions. Many questions and answers were allowed that might have been excluded, and it seems probable that in some instances evidence was excluded that might have been allowed. This was almost unavoidable under the circumstances. In many cases the purpose of the question was not as plain' to the court as it may have been to counsel. As the case may be tried again we have gone somewhat into detail, but we cannot attempt an analysis of this evidence, covering as it does more than 600 sheets of closely typewritten matter.
The witness Nannie Meyers testified to a conversation with the defendant at the defendant’s office in which the defendant said she could have no police protection in running her house, the only protection she could have was what he, the defendant, could give, and asked her what that would be worth to' her. She was then asked whether she heard from him after that, and testified that the witness Riley McLimans called at her house, and, representing that he was sent there by the defendant, asked her if she was. going to send that money to the defendant. She was
There are many assignments of error upon the rulings of the trial court in admitting and excluding evidence. In some instances the trial court might properly have been more liberal in the cross-examination of the state’s witnesses, and also in the defendant’s offer of evidence.
Instruction No. 3, given by the court, appears to be rather more particular to guard the interests of the state than those of the defendant against mistakes or oversight by the jury. Great care should be taken in such instructions to avoid the impression that the state is more interested in conviction than in acquittal. “It is essential to the peace and welfare of society and good government that every guilty man be punished, when his guilt is established by a measure of proof required to convict of crime in a court of justice. * * * You should not allow your minds to be influenced by consideration of sympathy for the defendant, or for his family or friends.” This instruction presents pretty strongly the interest of the state in conviction. The corresponding statement, “You will readily appreciate its importance to the defendant, because it involves his liberty,” perhaps infers that the státe is equally interested in the acquittal of an innocent man, but does not present that idea as emphatically. Under the circum
One of the grounds for the motion for new trial was that there was misconduct of one of the jurors in the jury room while the jury was considering their verdict. Three several jurors testified that the juror Yeazel stated in the jury room to the jurors, in substance, that he had knoAvn the defendant since boyhood, and that he knew his reputation, and that it Avas bad, and stated some things as facts to the jury which, if true, would indicate that the defendant’s character and reputation was bad, and that the said Yeazel continued in this sort of recital to the jury until he was stopped by the foreman of the jury. This evidence of these three witnesses was denied by the juror Yeazel, and also denied by one other juror, who testified that the juror Yeazel did state that he knew the defendant Avhen he was a boy, but that he did not state the other matters attributed to him. This witness stated that cots were put up for them, and that during the night he went to sleep and slept until 7 o’clock the next morning. He was asked if it was possible that Yeazel might have made the remarks attributed to him by the other jurors, and answered, “It is possible, I presume, but not probable. * * * I couldn’t say I heard every word because we were all talking a good deal. Q. And at times some were talking in one part of the room and others in the other part? A. Yes, they was talking to some extent.” The foreman of the jury Avas not called as a witness. Such a recital of alleged facts as it is charged this juror made would be misconduct and would vitiate the verdict. The preponderance of the evidence is that the juror Yeazel was hostile to the defendant, and that he stated as facts within his knowledge substantially the matters testified to by the three jurors referred to.
For the reasons indicated, we cannot affirm the judgment, and it is therefore reversed and the cause remanded for further proceedings.
Reversed.