83 Neb. 240 | Neb. | 1909
The plaintiff in error, hereafter called the defendant, was prosecuted for a violation of the provisions of section 7170, Ann. St. 1907, making it unlawful for any per-, son to-keep for the purpose of sale, without a license, any malt, spirituous or vinous liquor in this state. The first count of the complaint charged defendant with keeping and having in his possession certain intoxicating liquor called “barley mead,” for the purpose of unlawful sale. The second count charged him with having in his possession, for the same purpose, certain intoxicating liquor called “beer.” The third count charged him with having in his possession certain intoxicating liquor called “whiskey,” for the purpose of sale without a license. There was a search and seizure of three barrels of liquor called “barley mead,” which was found in the defendant’s possession. He was held to answer to the district court, where an information was filed against him by the county attorney charging the same offenses set forth in the complaint before the magistrate. His trial resulted in a conviction upon the first count of the information, and a verdict of not guilty as to the second count; the prosecution in the meantime having dismissed as to the third
His first seven assignments of error relate to the giving and refusal to give certain instructions to the jury, and these assignments will be considered together.
We find from an examination of the record that in the defendant’s motion for a new trial no complaint was made of the giving or refusal to give ihstructions. It is therefore contended by the attorney general that this court has no right to consider any of these assignments. It seems clear that this contention must be sustained. In Cleveland Paper Co. v. Banks, 15 Neb. 20, it was held that “under the general assignment, in the motion for a new trial, of ‘errors of law occurring at the trial,’ only such errors as appear in the bill of exceptions can be considered. If objection is made to any of the instructions, it must be specifically assigned.” This rule, so far as we are able to ascertain, has been approved and followed in all cases where this question has arisen since the decision above mentioned. In Hamilton v. Goff, 45 Neb. 339, it was said: “It has long been the rule of this court that exceptions to the giving or refusing of instructions will not be noticed unless such rulings are specifically assigned in the motion for a new trial” — citing Cleveland Paper Co. v. Banks, supra, and Omaha & R. V. R. Co. v. Walker, 17 Neb. 432. The rule announced in these cases is decisive of this question as presented by the record in the case at bar.
The eighth assignment of error is as follows: “The court erred in refusing the defendant the right to cross-examine the witness for the state, T. W. Carroll, and in sustaining the objections to such cross-examination.” The record discloses that the examination in chief of this witness was limited to the seizure of the liquor in question on March 16, 1908. The rule that the cross-examination of a witness should be limited to matters brought out upon his examination in chief is too well settled to require the cita
It is also contended that the court erred in receiving the testimony of the state chemist, Redfern, who analyzed the barley mead which .was found in the defendant’s possession. It appears that the witness upon his redirect
Defendant further alleges error in the refusal of the court to sustain his objections to Ms cross-examination while testifying in his oavu behalf. The record discloses' that after the defendant had admitted having the. liquor in question in his possession, and after having stated that he was not intending to sell it, but just keep it in order to ascertain whether he had the right to sell it or not, he was asked on cross-examination by the prosecuting attorney if it was not a fact that he had this kind of liquor in his possession before the time set forth in the information. Over the objections of his counsel that the question was not proper cross-examination,- he was required to answer. His reply was.: “Yes, sir.” He was then asked if he had been selling this same kind of liquor called barley mead, and over his objections he was required to testify, and stated that he had been selling it, and that he had been keeping it in his place of business for sale. It is now contended that this was not proper cross-examination, and that it required the defendant to giAre testimony incriminating himself. We think the examination was entirely proper. One of the questions for the consideration of the
Complaint is also made of the fact that the state was alloAved to introduce evidence tending to show that from time to time during the previous year certain persons had been seen in an intoxicated condition in the defendant’s place of business. While this testimony was rather immaterial, it was apparently offered for the purpose of showing that the liquor in question which had been sold by the defendant was intoxicating in its effect. Taking this evidence in connection with the fact that the defendant had been openly selling this liquor under a claim that it was a nonintoxicant, this evidence was not only proper, but it was in no way prejudicial to the defendant’s substantial rights.
Finally, it is contended that the court erred in not requiring the state to elect upon which of the two counts of the information it would rely for a conviction. In an-SAver to this complaint it is sufficient to say that the counts were properly joined, and there was evidence before the jury tending to sustain the charge contained in each of them. It also appears that the case Avas submitted to the jury upon proper instructions, and the defendant was found guilty upon the first count of the information, and not guilty as to .the second count. So it is apparent that he suffered no prejudice by the failure of the court to sustain his motion. In such a case the state will not be required to make an election.
A careful examination of the record satisfies us that
Affirmed.