46 Neb. 631 | Neb. | 1896
On December 15, 1891, an information was filed in the district court of Pierce county, charging the plaintiff in error with the crime of embezzlement of public money, the property of such county, during the time he was treasurer thereof. ■ On the 27th day of April, 1893, the application of plaintiff in error for a change of venue was granted, and the case was sent to Antelope county for trial December 23, 1893 ;• as a result of a trial, a verdict of guilty was rendered and entered, and, after motions for new trial and in arrest of judgment were heard and overruled, plaintiff in error was sentenced to a term of three years’ imprisonment in the penitentiary. He has presented the cause to this court by petition in error.
A bill of exceptions was filed, which was attacked on the part of the state by a motion to quash, which was sustained ; as a conseq uence of which action, we will be confined in our examination of the points raised for adjudication by the assignments of error to those which can be discussed and determined without reference to the bill of exceptions.
One assignment of error refers to alleged misconduct of the court during the trial. The facts on which this assignment depends for its force were made a part of the record by affidavits in which they were set out. There were also counter-affidavits in relation to the same matter filed for
During the pendency of the cause, and before trial, the plaintiff in 'error made application by motion to be discharged on the ground that four terms of court, succeeding the one during which the information under which he was prosecuted was filed, had passed without a trial being accorded him, and that the delay or failure to bring the cause to trial was not occasioned by any application or act of his or by lack of time. Affidavits were filed in support of the motion, to show that the trial of the case had not been delayed on application of the plaintiff in error, or for want of time, and on the part of the state mainly directed to an attempt to show the opposite to be true as to both facts; but the affidavits are not presented to this court by a bill of exceptions, and we cannot examine or consider them. The record before us does not disclose that the delay in the trial of the cause was caused in any manner by the plaintiff in error, or for lack of time at any term of the court to try it, nor does the contrary appear. For the purpose of the motion doubtless it devolved upon the plaintiff in error, if not disclosed by the record, to show that there had been no postponement of the trial of the cause on his application, or that the delay was not occasioned by the want of time to try it during the third term of court held subsequent to a term at which the information was filed. In the absence of the appearance of these facts in the record or a showing in regard to them, we think the presumption must prevail that the court proceeded regularly and without error, and properly held and placed the plaintiff in error upon trial
Another contention is that the information filed in the case was not made or filed by any officer or person authorized by law. The information was made and filed by "YV. W. Quivey, who was. not the county attorney of Pierce county at the time, and whose authority, if he possessed any, was derived from an order of the court in this particular case, which was as follows: “Now on this 14th day of December, 1891, the same being a judicial day of the regular December, 1891, term of said court, this cause came on for hearing, and the county attorney failing to appear and prosecute this case, and it appearing to the court that said county attorney is disqualified from prosecuting on behalf of the state of Nebraska, by reason of his having been retained as counsel for the defendant,- Carl Korth, prior to his election and qualification as county attorney aforesaid; and it further appearing that said county attorney has no deputy qualified to appear for him in this cause: It is therefore ordered by the court that W. W. Quivey is hereby appointed by said court to act as county attorney in this case, and that John S. Robinson is hereby duly appointed by the court to assist the said W. W. Quivey as county attorney in the prosecution of this cause.” Pursuant to this order W. W. Quivey acted in all particulars as county attorney in this case. It is argued that, under the provisions of our constitution (art. 1, sec. 10), that “No person shall be held to answer for a criminal offense * * * unless on a presentment or indictment of a grand jury; Provided, That the legislature may by law provide for holding persons to answer for criminal offenses on inform
A plea in abatement was filed in behalf of plaintiff in ierror and on motion of the state was stricken from the files, or practically overruled. This action of the court is assigned as error. The plea was founded upon the same matters as presented in the motion to discharge the plaintiff and which we have hereinbefore discussed. Whether it was proper practice for the court to strike the plea from the record, or whether the subjects set forth in the plea were such as may properly be presented by the plea in abatement, we need not stop to consider, for, on December 17} 1891, plaintiff in error had been arraigned and pleaded generally, and on the date the plea in abatement was filed the plea to the general issue was still of record and not withdrawn. This being true, all defects which might have
Another objection is that, at the time the plaintiff in error was placed on trial, the record did not show that he had ever been accorded a preliminary examination for the crime with which he was charged in the trial court. This objection was made in the district court at the inception of the introduction of testimony and was overruled by the court. This is assigned for error. The prosecution was instituted in the county court of Pierce county and, after it reached the district court, an information was filed. Afterward, during the pendency of the cause in Pierce county, an order was made in which it was recited that the transcript of the record of the hearing before the county judge, and some of the accompanying papers, and particularly the information filed in the'examining court, had been lost, and that a new transcript and copy of the information ■ be substituted. A change of venue was applied for and granted and the case was transferred to Antelope county, and the order of substitution was not fulfilled until after the removal of the cause to Antelope county, and the commencement of the trial; but the transcript then filed disclosed that the plaintiff in errof waived an examination in the county court. This being true, there was no prejudice to his rights in proceeding with the trial at a time when the transcript of the hearing in the examining court was not in the record by reason of being lost or mislaid, or in allowing another transcript and copy of such information to be substituted.
Another alleged error is that the court erred in refusing to require the state to elect on which count of the information the plaintiff in error should be tried. There were five counts in the information, as to the fourth of which a nolle
It is claimed the court erred in refusing to give instruction numbered 2, requested by plaintiff in error. This instruction was as follows : “You are instructed that in law the words ‘prima facie’ mean ‘at the first blush/ ‘on the first appearance of.’ Such evidence, in a criminal case, is
The giving of each of-the instructions numbered 1 and 2 of the charge to the jury given by the court on its own motion is assigned as error. The main objection raised is claimed to be applicable to both and we will so examine it. No. 1 of these instructions was a copy of the section of the Criminal Code defining the crime of embezzlement of public money, under which this prosecution was instituted, and No. 2 quoted the first count of the information and stated that it contained a charge against the plaintiff in error of a violation of the section set forth in instruction numbeied 1. It is alleged that the act of the legislature of 1891, in relation to depositing the county funds in banks, repealed at least so much of the section defining the crime of embezzlement as refers to the loaning, of such funds, and that these instructions were erroneous in not noticing the act of 1891, and its claimed effect upon the laws of embezzlement, and in not informing the jury that it should not consider any evidence in relation to loaning the county funds, as bearing upon the issue which was being tried. To the proposition that the act of 1891 repealed the portion of the law of embezzlement in regard to the loaning of funds of a county we do not agree. The act of 1891 was entitled “An act to provide for the depositing of state and county funds in banks,” (Session Laws, 1891, p. 347, ch. 50,) and ,in its text it is confined to providing for the deposit of such funds, for safe-keeping, in banks, under certain requirements as to bonds being furnished for the security of such funds, and other details, and iti each and every detail it appears that it is for the county and its benefit that such deposits are to be made, the treasurer acting in each and every instance for and in behalf of the county, and as prescribed by law and not of his own volition. If he refuse to perform any of the statutory requirements, he is liable to pun
Affirmed.