The plaintiff in error, hereinafter designated as the defendant, was tried on an information filed by the county attorney of Douglas county in the district court for that county, charging him with a violation of section 9592, Comp. St. 1922.
The information contained five counts charging the defendant with setting fire to a building and certain fixtures and furniture therein, owned by the defendant, which were insured against loss or damage by fire, with intent to burn and destroy the same, and with the intent to prejudice the insurers.
Counts 1 and 2 referred to the buildings covered by insurance in two different companies, counts 3, 4, and 5 referred to fixtures and furniture covered by insurance in three separate companies. To said information the defendant entered a plea of not guilty. On a trial defendant was found guilty on all five counts and sentenced to five years imprisonment on each count, sentences to run concurrently.
For a reversal of the judgment of conviction, defendant relies upon three assignments of error, which will be considered in the order presented in his brief.
It is the contention of counsel for defendant, under the first assignment of error, that defendant has twice been put in jeopardy for the same alleged offense.
At the beginning of the trial, after a jury had been impaneled and sworn and a witness for the state sworn, but before any evidence had been taken, the defendant, without withdrawing his plea of not guilty, objected, orally, to
It appears from the transcript that the defendant was placed upon trial on December 7, 1925, a jury impaneled and sworn, evidence adduced, and trial continued to December 8, 1925, at which time the trial proceeded, and was postponed to 2 o’clock p. m. of said day, because the wife of one of the jurors was being confined at the Nicholas Senn Hospital. Thereafter at 2 o’clock p. m. of said day the court entered the following order declaring a mistrial, to wit:
“Thereafter, at 2 o’clock p. m., it appearing that said juror’s wife gave birth to a baby daughter at 10 o’clock a. m., that said child has since died, and Mrs. Sanders is seriously ill, and said juror incapacitated mentally to continue to sit as a juror in this case, it is therefore ordered, under authority of law, and particularly under, authority of section 10151, Comp. St. 1922, defendant and his counsel being present in court, and making no objection thereto, that the trial of this case so far proceeding be, and is hereby declared to be a mistrial, and the present jury is discharged, and the case left for trial at a later date before a jury selected from a subsequent panel.
“It is further ordered that the above reasons for discharge of the jury be spread upon the journal of this court, and that the prosecution shall not be prejudiced thereby.”
The motion is invalid as a plea in bar and cannot be considered as such, but will be treated as a motion to be discharged, grounded upon the proceedings had at the time the defendant was placed upon trial the first time. Davis v. State, 51 Neb. 301.
The argument of counsel that the defendant has twice been placed in jeopardy for the same offense is predicated upon two grounds: (1) That the reasons assigned in the order declaring a mistrial and discharging the jury were insufficient under section 10151, Comp. St. 1922, to warrant
As to the first ground, the argument is that the reasons relied upon for warranting a discharge of the jury are not made a specific ground for discharging the jury in a criminal case by section 10151. Section 10151, Comp. St. 1922, provides:
“In case a jury shall be discharged on account of sickness of a juror, or other accident or calamity requiring their discharge, or after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge shall be entered upon the journal; and such discharge shall be without prejudice to the prosecution.”
Construing that section, this court has held: “That the insanity of a juror was an ‘accident’ or ‘calamity’ authorizing the discharging of the jury.” Davis v. State, 51 Neb. 301.
That the words “accident” or “calamity,” as used in the statute, “include as well a case where a biased juror is discovered during the progress of the trial.” Quinton v. State, 112 Neb. 684.
The reasons given in the order for discharging the jury and declaring a mistrial are clearly within the meaning of the words “accident” or “calamity” as used in the statute. The serious illness of the wife of the juror and the death of his child would, as a matter of common knowledge, have caused him distress of mind and incapacitated him from giving the case any consideration. To have continued with the trial under such conditions would have been inhuman. It would have been equivalent to trying the case to eleven jurors. Furthermore, the sympathy of the other jurors would naturally have been with him in his misfortune and tend to render them anxious to dispose of the case as quickly as possible. Under such circumstances the jury would not give the case the careful consideration which the im
In support of the second ground, the argument of counsel is that, even though the reasons given in the order are sufficient in law, the trial court could not arbitrarily discharge the jury without judicially determining from evidence adduced the necessity for such discharge. The general rule seems to be that, where the necessity for declaring a mistrial and discharging the jury in a criminal case does not occur in open court in the immediate presence of the judge, the facts showing the existence of such necessity must be heard and determined by judicial methods, and if the jury be discharged without that being done the defendant stands acquitted. 8 R. C. L. 156, sec. 146; State v. Smith, 44 Kan. 75; State v. Reed, 53 Kan. 767; State v. Allen, 59 Kan. 758; State v. Nelson, 19 R. I. 467, 33 L. R. A. 559; State v. Jefferson, 66 N. Car. 309; Upchurch v. State, 36 Tex. Cr. Rep. 624, 44 L. R. A. 694; People v. Parker, 145 Mich. 488. Upon the record before us, defendant is not in a position to raise the question that the necessity for the discharge of the jury was not judicially determined from evidence adduced.
The rule is: “All presumptions exist in favor of the regularity of the judgments of courts of general jurisdiction, and he who asserts the contrary is required to establish the alleged error by an exhibition of the record.” Wright v. State, 45 Neb. 44. Also Saxon v. Cain, 19 Neb. 488; Lovelace v. Boatsman, 113 Neb. 145.
In absence of a bill of exceptions showing otherwise, we must presume the proceedings leading up to the making of the order were regular, and that such evidence as was necessary to establish the necessity for the discharge of the jury and the making of the order was before the trial court at the time it was made. The record before us fails to show that the defendant has been twice placed in jeopardy. .
Under the second assignment of error it is urged that the trial court erred in admitting evidence of a former fire
It appears from the record that the defendant, while testifying in his own behalf on his direct examination, testified as to the value of the buildings, household goods, furniture and fixtures covered by insurance in the companies named in the information on or about the date on which he was charged with setting fire to the same. This evidence was offered presumably for the purpose of showing that his property was not over-insured at the time of the fire. On cross-examination he was asked the questions complained of in regard to the damage done by the fire to the same property in February, 1925. These and other questions along the same line elicited the information that he had received $600 for the damage done by that fire, that the building had been damaged to the amount of $1,900 and that it had not been repaired at the time of the fire on June 1, 1925. The defendant having testified as to the value of the insured property as of about June 1, 1925, it was entirely within the range of legitimate cross-examination to interrogate him as to the damage done to the property by the February fire and thereby tend to discredit the valuation he had placed upon the property in his direct examination. No questions were asked on cross-examination that would indicate that the fire of February, 1925, was of incendiary origin, but such cross-examination was directed solely to an attempt to discredit his testimony given on direct examination as to the value he had placed upon the property. The trial judge, with that careful regard for the rights of the defendant shown throughout the trial as evidenced by the record, gave instruction No. 12 limiting the application of such evidence to the particular purpose for which it was admissible, and told the jury that the fact that there may have been a former fire on the premises in question in February, 1925, was not to be considered by them as any evidence whatever of defendant’s guilt. The rule is, where evidence in a case is not admissible for the
It is claimed the verdict is not sustained by sufficient evidence. It is contended there is no competent proof thé property was insured or that the policies were valid. The record does not sustain such contention. Mr. Young, the adjuster for the- companies named in the information as carrying the insurance testified as to the amount of insurance each company carried upon the property of the defendant, the property covered, the date when such policies were issued, and that the same were in force on June 1, at the time of the fire, and also to an unsuccessful attempt to-adjust the losses theréunder with the defendant. The defendant, while testifying as a witness in his own behalf, also testified that he took out most of the policies on May 25, 1925, and that he made claim for the damages sustained by the fire in the sum of $4,600, and was only offered $278 by Mr. Young. The evidence is amply sufficient to show that the property was insured as charged in the information and that such insurance was in force at the time of the fire;
The further argument advanced in this connection is that the policies were the best evidence of insurance, and that no proper foundation was laid for the introduction of secondary evidence, and that secondary evidence without such foundation was incompetent and should not be considered as proof of such matters. No objection was made to such testimony of Mr. Young'upon any ground. It is to be presumed that if timely objection had been made the trial court would have required either the policies to have been offered or sufficient foundation laid for the introduction- of secondary evidence. Such evidence having been admitted without objection, it will be considered as competent proof that the property was insured and the insurance was in force at the time of the fire.
It is contended there is no proof that the various companies, alleged to have carried insurance on the building and contents, were corporations or even de facto corporations. The gist of the crime denounced by the statute under which this prosecution is brought is the intent with which the person sets fire t.o his own insured property; it must be with the intent to burn or destroy the same and with the intent to prejudice the insurer, and whether the insurer is a corporation or otherwise is not an element of the crime, and, not being made so, it is not necessary to charge and prove that the insurer was a corporation. State v. Steinkraus,. 244 Mo. 152. In this case the information avers that the different companies named therein were corporations, and it is shown by the evidence that the companies named in the information were engaged in insuring property; their names indicate such to be their business, that they insured the property of the defendant, that he recognized their identity and existence by claiming indemnity under .the policies issued by them and in trying to settle with their authorized adjuster. This establishes their de facto existence as such insurance companies, which is sufficient. Bloom v. State, 95 Neb. 710.
It is further, contended that, “stripped of technicalities,” the evidence falls short of showing the guilt of the defendant. The evidence shows that the defendant at the time of the fire had his building and the contents insured in the
The defendant had a fair and impartial trial, the evidence ■is sufficient to sustain the verdict, and the judgment of conviction should be affirmed and the same is hereby
Affirmed.