95 Neb. 292 | Neb. | 1914
Lead Opinion
Defendant was convicted in the district court for Sarpy county of the crime of attempting to bribe the county attorney of that county. From such conviction he prosecutes error to this court.
1. “The indictment did not contain statements sufficient to constitute a cause of action.” This point is not argued and will not be considered.
2. Section 176 of the criminal code “is void because of indefiniteness, and does not include or refer to a prosecuting attorney, or any attempt to bribe such officer.” The argument upon this point is that the law is void as to the matter of attempting to bribe a county attorney, in that it does not point out what officer, if any, is intended to be referred to; that section 176 “refers to ‘county officer’, not ‘a county officer.’ ” We are unable to grasp the distinction. Section 176 provides: “Every person who shall offer or attempt to bribe a public officer and every public officer who shall solicit a bribe or who shall propose or agree to receive a bribe in any case shall be fined in a sum not exceeding five hundred dollars ($500) nor less than three hundred dollars ($300) and shall be imprisoned in the penitentiary for the period of one year.” If a county attorney is a public officer, which is too plain to admit of a doubt, he is included within this section of the criminal code.
3. “The court erred in giving instruction No. 2.” Instruction No. 2 is a literal quotation of section 176 of the criminal code. The objection to the instruction is that the court should not have included that part of the section which provided that “every public officer who shall solicit a bribe or who shall propose or agree to receive a bribe in any case shall be fined,” etc. It is said that there was no evidence on which to base this portion of the instruction; that it was sufficient to instruct tlie jury on the law as to offering or attempting to bribe a public officer; that the inclusion of the language last above quoted had a tendency to confuse the jury; that the jury may have conceived the idea “that Judge Begley, a popular officer, elected by the people, may have been accused of
4. “The verdict is contrary to the evidence and is not sustained thereby.” The evidence against the defendant consisted largely of the testimony of the county attorney, corroborated to some extent by the testimony of Mr. Chase, who held the office of sheriff. The evidence shows -that the offices of the sheriff and county attorney were in adjoining rooms in the courthouse; that on the day alleged the defendant called at the courthouse to see Mr. Begley, the county attorney. At the time he called, Mr, Begley was in his office, but was engaged in conversation with the county attorney of Saunders county; that defendant took a seat in Mr. Chase’s office to wait until he could have an interview with Mr. Begley; that while in Mr. Chase’s office he said he wanted to see the county attorney; to quote Mr. Chase’s language: “He said he wanted to see the county attorney — see him alone so his word would be just as good as the county attorney’s.” When Mr. Begley’s visitor departed defendant was admitted. Mr. Begley testified: “Mr. McMartin came into my office, and he said, T have come to see you about a matter, and I am going to talk plain.’ He says, ‘There has been all kinds of rumors clown in Fort Crook as to what you are going to do, what you are going to do when you got in, and I came up to see you. We are all up in the air. There are reports down there that you have got the dope on all of us.’ I said, ‘Mr. McMartin, I have the dope on all ex- • cept you. I have sent a man down there, and have found out about everybody else, but I haven’t anything against you.’ Mr. McMartin said, ‘I am glad of that. I have been arrested once, and just finished paying the fine.’ ” He further testified that, when defendant asked him what he was going to do, he answered: “I said, ‘You know what the law is with reference to selling at Fort Crook, with reference to selling within two and a half miles of a
In connection with this assignment we will consider defendant’s assignment that the court erred in admitting in evidence the five-dollar gold piece above referred to. It is argued that it was not shown that this money was given for purposes of attempting to bribe; that Judge Begley himself stated that it was given for purposes of Heating; that the sum was insignificant, and when the larger sum was not considered there could be no presumption that the insignificant sum was left for an illegal purpose. We do not think the court erred in admitting the gold coin in evidence. The jury had a right to determine
5. The next complaint is that, when the court had finished, reading its charge to the jury, it announced to counsel in the presence and hearing of the jury the following language: “The instruction asked by defendant is refused.” This did not constitute reversible error, nor does Jones v. State, 87 Neb. 390, cited bv defendant, so hold.
6. It is next urged that the case should be reversed because of remarks made by Attorney W. R. Patrick, who was conducting the prosecution, in his closing argument to the jury. No objection was made to the language at the time it was used, nor any ruling of the court requested. The only objection appearing in the record is in the motion for a new trial, and in the affidavit of defendant’s counsel in support thereof, which recites that Mr. Patrick in his closing argument “uttered the following language
7. It is next argued that the court erred in refusing the only instruction tendered by defendant. The instruction reads: “The jury are instructed that, in considering the testimony of an officer, or officers, whose duty it is to pursue, arrest, and prosecute criminals, you should consider it with caution, because of the tendency of such officers to hear and remember those portions of conversations and evidence against the defendant, and not hear or remember such portions as may be in favor of the defendant.” This instruction was properly refused for two reasons: (a) Mr. Chase was not testifying as to anything which occurred at a time when he was acting in his capacity as a sheriff. He was simply testifying, as an ordinary citizen, to a conversation had with the defendant prior to the time the crime was committed, (b) In
Finally, it is argued that “the court erred in not striking out Mr. Begley’s answer‘to question No. 129, which follows No. 131.” Counsel has these two questions transposed. On cross-examination counsel for defendant, by question No. 129, asked Mr. Begley: “Didn’t you tell Mr. Rushart you had sent down six or seven times to catch Mr. McMartin, to get evidence against him, but failed to do it? A. When and where? (130) Q. Along about this time? A. No; I don’t recall of having told Mr. Rushart that. (131) Q, Along about the time you sent Mr. Hamilton down there? A. No, sir; I don’t recall of telling anybody about sending any one down there. Since the day Mr. McMartin was at my office, I remember Mr. Rush-art’s coming up there and telling me that he heard a conversation over the ’phone where Mr. McMartin was coming up to offer me money. Mr. Langdon: I move to strike the answer out as hearsay and not responsive. The Court: Overruled. Exception.” In this ruling the court did not err. The motion is to strike the entire answer. The first sentence was clearly responsive to counsel’s question, and not hearsay; hence, the motion was bad and was properly overruled. Moreover, since counsel had asked Mr. Begley about a conversation with Mr. Rushart, it was not an abuse of discretion for the court to permit an answer to remain in the record which told what the conversation actually was that he had had with Mr. Rushart.
Affirmed.
Dissenting Opinion
dissenting.
1. I am not able to concur in the majority opinion, although quite willing to concede its ■ plausibility and strength of argument. I conceive it to be the duty of ibis court to grant a new trial in a criminal case where it is
In Carr v. State, 23 Neb. 749, the present chief justice, delivering the opinion of this court, said: “It cannot be believed that, in this advanced age of our jurisprudence, any court could be found who would permit such conduct, without visiting the severest penalty of the law upon the parties indulging in such actions. It matters not how guilty a defendant may be of crime, our constitution and laws guarantee to him a fair trial.”
In Leahy v. State, 31 Neb. 566, the defendant was on trial for rape, alleged to have been committed on one Lizzie Schultz. On cross-examination the defendant was asked if on the day succeeding that on which it was al
In Elliott v. State, 34 Neb. 48, there was a reversal of the judgment, because the county attorney in the cross-examination of the defendant asked him certain questions which were of a prejudicial character. “Q. Is it not a fact that you stole horses in Burnett county, Texas? A. I never did; no, sir. Q. Don’t you know that the sheriff has a warrant for you for stealing a horse in that county? A. I don’t know it; no, sir.” An examination of the original bill of exceptions, now on file in the office of the clerk of the supreme court, shows that no objection was made to these questions and no exception taken. It is not claimed in the original brief of the plaintiff in error, also on file in the same office, that there was any objection. This court, by Judge Maxwell, said: “The emblem on every courthouse, of justice holding the scales in equipoise, would be a meaningless symbol if even one of the poorest and most abject of humankind was unjustly deprived of a right.” It will be seen that the district judge made no ruling of any kind. He was not asked to do so. The reversal toas simply because of misconduct of the county attorney. The following cases are along the same line as Elliott v. State, supra; Chicago, B. & Q. R. Co. v. Kel
In Chicago, B. A Q. R. Co. v. Kellogg, supra, it was said in the body of the opinion: “We do not, however, wish to be understood as holding that a. rebuke from the court, or a complete retraction by the offending counsel, is in all cases of this kind a sovereign remedy. If the transgression be flagrant — if the abusive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence — a new trial should be promptly awarded, regardless of the want of an objection and exception.” In that case a reversal was not granted because of misconduct of plaintiffs counsel; but the court said: “We have concluded * * * that the damages are excessive, and must have been assessed while the jury were yet under the sway of counsel’s superheated eloquence.” A reversal was ordered, unless there was a remittitur for $2,500, or leaving the judgment to stand affirmed for $6,500.
In Ashland Land & Live Stock Co. v. May, 59 Neb. 735, it was said in the body of the opinion: “We have little patience with counsel who deliberately seek to achieve success by lawless methods; and we do not hesitate, in any case, to deprive them of advantages tlvu.s obtained.” In the syllabus of that case it is said: “Where there is reason to believe that the jury may have been influenced in any degree in favor of the prevailing party by the misconduct of his counsel in arguing the cause, the verdict should be set aside and a new trial awarded.”
In Ashland Land & Live Stock Co. v. May, 51 Neb. 474, it is said: “In no instance did the trial judge rebuke counsel for plaintiff on account of his misconduct, nor was he directed to desist from using improper language, nor was the jury, either at the time, or in the instructions, admonished not to be influenced by them. The misconduct of counsel for the prevailing party in this case could not have been otherwise than prejudicial to the defendant,
In Nickolizack v. State, supra, the accused was a witness in his own behalf in a rape case, and the prosecuting officer on cross-examination asked him, in substance, “if he had not at a previous time been guilty of a like offense upon another young girl, naming her, and other like questions, and thereafter called the person named to the witness-stand and examined her, for the purpose of not only impeaching the accused but of proving him guilty of such independent offense; held, that such conduct was improper and prejudicial, for which the accused should be granted a new trial ”
In Ashland Land & Live Stock Co. v. May, 59 Neb. 735, it is said: “When this case was here before, a judgment in favor of the plaintiff was set aside because of the pernicious tactics of his counsel; and we would certainly reverse the judgment now under review, if there were reason to suppose that the jury were at all influenced in giving their verdict by the statements in question.” It will be noticed that it is not a question of whether objection has been made. It is the flagrant wrong done by counsel for the prosecution that determines the action of this court.
In Stratton v. Nye, 45 Neb. 619, counsel for the defendant made the charge in his opening address to the jury that the defendant Nye was the owner of one-half interest in a corn sheller, and that he “sold that half interest to Mr. Gilchrist, and after this he came to town and mortgaged the same half interest which he had sold to Gilchrist.” While there was an objection in that case, this court said: “The court should, especially when objection is made, reprove the parties in the hearing of the jury, and as far as' possible remedy the mischief by instructing the jury to disregard the prejudicial statements.” It will be noticed that the,court does not confine the right of the injured party to such cases as those in.which he has made objection. He is entitled to the relief whether he made objection or not.
“The worst criminal is entitled to be judged by the laws; and, if his .conviction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether.” Cooley, Constitutional Limitations (7th ed.) p. 478.
In McKay v. State, 90 Neb. 63, the court quoted briefly the language of Chief Justice Christiancy in Hurd v. People, 25 Mich. 405. “The only legitimate object of the prosecution is To show the whole transaction, as it was, whether its tendency be to establish guilt or innocence.’ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object, like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success.” In that case Judge Fawcett, in dwelling upon the fact that the court permitted Mr. M. F. Harrington to assist in the prosecution, said: “The mere fact that the court permitted Mr. Harrington to assist in the prosecution cannot be held to be a compliance with the statute which provides that private counsel may be procured by the county attorney under the direction
It is well to remember that it is- a serious thing to go to the penitentiary even just one year. Mr. Harrington went into the case of McKay v. State, 90 Neb. 63, at the “request” of the county attorney, at least the county attorney was not unwilling, and by “the order of the court * * * is permitted to assist the county attorney in the prosecution of this case.” Now the substantial objection to Mr. Harrington was the private interest he had in the case, being employed and “paid by the brothers and sisters of the deceased.” This same objection to private counsel is further emphasized in Flege v. State, 93 Neb. 610, where it is held that “no attorney should be appointed who is known to be a partisan as against the accused, and who has theretofore been employed and paid by another suspected person.” If the doctrine applied to the McKay and Flege cases, and which seems mainly responsible for their reversal, should be applied to the instant case, it is difficult to see how McMartin had a fair trial, because-Mr. Patrick had a private interest to sustain by securing McMartin’s conviction, not a private interest existing because of fees which had been paid him in some other proceeding, but Mr. Patrick was not the county attorney of Sarpy county, and he was in the case as Mr. Harrington was in the McKay case, and as private counsel was in the Flege case, by request of other counsel, and by permission of the court, and he had a personal interest in the enforcement of the amendment of which he was the. author. We quote from page 295, chapter 81, laws 1907 : “(Senate File No. 295. Introduced by Mr. Patrick.) An act to amend section 25 of chapter 50 of the Compiled Statutes of Nebraska for the year 1905 (C. A. S. 7175) and to repeal said original section.” The act contains this clause, which is the part of the act pre
The great danger was that the zeal of the private prosecutor in a liquor case where his amendment to the law was on trial for the first time, and the zeal of the witness who felt that his honor was at stake, were such that together they defeated justice. I have read all the evidence. If Judge Begley’s evidence is. to be analyzed and compared with the other testimony, the case is essentially weak. No doubt Judge Begley testified just as he felt and saw; but he may have looked through colored glasses, and he may have been unduly sensitive. In any event Begley’s testimony should be considered as a whole. It should not stand alone upon his conclusions. The defense is that McMartin did not intend to offer a bribe to any one. He testified in a manly way, and apparently without concealment. He admitted that he was selling liquor without license. He says that he told Judge Begley so; and Begley admits it. He says he wanted to know of Beg
2. In Langdon v. Clarke, 73 Neb. 516, this court set aside the verdict where the district court had instructed the jury that words of provocation may be considered in mitigation of damages Avhere there actually were no Avords of provocation. Langdon had been struck by Clarke with his fists, and sued Clarke to recover damages for the assault. The only testimony of anything said by Langdon prior to the time when he Avas struck was that he (Langdon) Avas not a liar, that he Avas not afraid, and that the plaintiff could not make him run. We quote from the opinion : “There Avas no evidence of any Avords used by the plaintiff Avhich the jury Avere entitled to take into consideration in mitigation of damages. Hence, this portion of the instruction was not warranted by the evidence, and was, we think, prejudicially erroneous. The jury may well have thought the Avords used were proper to consider in mitigation of damages, and in consideration thereof reduced the recovery to nominal damages, and by reason of the request of counsel hereinbefore discussed rendered a verdict for the defendant instead of for reduced damages.” The instruction as quoted in the brief in the instant case is: “Where there is no evidence of provocative words, it is error to instruct the jury that mere words of provocation are not sufficient to justify a person in committing an as
3. Grant Chase, the sheriff, testified on behalf of the state that he had a conversation with McMartin in his office when McMartin was waiting to see the county attorney, Judge Begley; that McMartin said: “He wanted to see the county attorney — see him alone so his word would be just as good as the county attorney’s.” He was then telling the sheriff of the county that he was going to talk to the county attorney about something of a criminal character, and that, if the county attorney should testify about it, there would be his testimony against the testimony of the county attorney as to what was said. McMartin apparently did not consider the proposed subject of enough importance to be very secretive about it, or he would not have been telling the sheriff, whose duty it is to arrest offenders, and to assist in procuring them to be punished. The way that McMartin talked to the sheriff tends to show that he came to see the county attorney for the purpose of preventing a future prosecution for selling whiskey without license. He was willing to close up if the county attorney wished him to do so. It is shown by the questions asked that the prosecutor asked the defendant many questions with a view to emphasizing the fact before the jury that he was guilty of selling liquor without license, and that he had been convicted of that offense. Questions 162, 163, 164, 165, 166, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, and 178 show the purpose to emphasize such conviction. Question 180 is directed to the inquiry as to whether the defendant paid $12 a month for the privilege of illegally selling liquor without license. Mr. Patrick also inquires if the other “bootleggers” at Fort Crook did not pay the village $12 a month for the privilege. The effort to try the defendant on some other charge than that contained in the information was'rather persistent, and could not well have been otherwise than prejudicial. Kanert v. State, 92 Neb. 14.