42 Neb. 356 | Neb. | 1894
This is a petition in error to review a judgment of the district court for Douglas county, whereby the plaintiff in error was convicted on the charge of shooting with intent, to kill one Reese Robinson. To the information the following plea was filed:
“ The State oe Nebraska, plaintiff, Ach Smith, defendant. V.
“Now comes Ach Smith, defendant, in his own proper person, idto court here, and having heard the information read, says that the state of Nebraska ought not further to prosecute said information against him because at the February term, 1894, of the district court of Douglas county the prosecuting attorney of said county, duly authorized by law so to do, presented an information against him for the same offense with which the defendant is charged in the present information; that said defendant was duly arraigned in said court on said information and pleaded not guilty thereto; that thereupon a jury was duly impaneled and sworn in said cause in said court, and the trial proceeded with, when said jury were discharged by the court without the consent of the defendant, and over and against his protest and objection, without agreeing on a verdict and without disagreeing or other special cause, there being no special necessity for the discharge of the said jury. Wherefore, the defendant prays judgment of the court that he may be dismissed and discharged from the premises in the present information specified.”
A demurrer was interposed by the state on the ground that the above did “not contain facts sufficient to constitute a plea in bar.” The demurrer having been sustained, the accused entered a plea of not guilty, and a trial followed, resulting in-a verdict of guilty, upon which judgment was subsequently entered, and which we are asked to reverse on account of alleged error.
*359 “ In the District Court in and for Douglas County,' Nebraska.
“State of Nebraska v. Ach Smith.
“After the impaneling of the jury the state moves that the jury be discharged and the defendant be remanded for the filing of a new information.
“The defendant objects to the discharge of the jury without a verdict being found, he having been once put upon his trial; and it having appeared to the court that by an oversight the word ‘ malicious ’ was left out of the information, and from an investigation of the facts the court is satisfied a crime has been committed and ought to be investigated by a jury, the jury is discharged. The defendant is required to appear at the next term of court, and on failure to give bond, remanded to jail until the next term of the court, and the witnesses will be recognized to appear. Defendant excepts.
“ I hereby certify the foregoing to be a full, true, and correct transcript of the proceedings had in the above named case on the hearing thereof in the district court in and for Douglas county, Nebraska, as shown by my shorthand notes taken on the trial thereof.
“E. B. Henderson,
“Reporter.”
It may be inferred from the foregoing statement that the parties, by agreement, submitted to the court, not only the sufficiency of the plea when tested by demurrer, but also submitted the plea on its merits; but granting such to be the fact, it will not avail the state in this proceeding, for two reasons: First — No provision is made for the certification of the proceedings of the court by the short-hand reporter. It is true that some of the cases in this court appear to sustain a different rule, but from a careful examination they will be found to harmonize with the views here
In City of Omaha v. Jensen, 35 Neb., 68, although Spiel-man v. Flynn is cited with approval, the only objection was “that no sufficient cause has been shown for the reading of that testimony; ” and from the syllabus prepared by the court it is apparent that the decision rests upon the ground that the question of the manner of authenticating the evidence was not raised by the objection. The act for the appointment of stenographic reporters (secs. 45-49, ch. 19, Comp. Stats.) provides that such reporters shall attend at all terms of the district court and shall make stenographic •reports of all oral proceedings had, including the testimony of witnesses, and any further proceédings or matter when directed by the trial judge. He is required to keep an office in the district of his appointment, in which he shall preserve all stenographic reports made by him, and shall furnish, on application of the district attorney or any party to the suit, a long-hand copy of the proceedings so recorded. Section 408 of the Code provides: “ Duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept
Reversed.