28 Neb. 341 | Neb. | 1889
The plaintiff in error and one Prank Miller were jointly informed against in the district court of Douglas county for burglariously entering a dwelling house and stealing therefrom a quantity of silverware. Miller pleaded guilty; "White pleaded not guilty, was tried and convicted. He presented a motion for a new trial, which was overruled. Immediately thereafter, and before sentence, he presented a motion in arrest of judgment, which was overruled, and he was thereupon sentenced to punishment in the state’s prison.
The following are the grounds stated in the last named motion:
“1. That the county attorney who filed the information had no legal authority to inquire into the offense alleged in this court, for the reason of its not being within the jurisdiction of the court.
“2. That no information was ever filed against this defendant, and preliminary examination had thereon by some magistrate or competent authority, and there has been no indictment or presentment of this defendant by any grand jury.
*343 “3. That the only pretense there has ever been of giving this defendant a preliminary examination was for another and different crime than that for which the county attorney has informed against him, and on which he was tried in this court and in this case.
“ 4. That he never was informed against and had any preliminary examination for or on the charge upon which the state has assumed to put him on trial in this court, nor was he ever presented to this court on such charge by any grand jury.
“ 5. That he has been, and by the proceedings in this case is sought to be, deprived of his liberty without due process of law.”
To the overruling of said motion the said Charles White excepted and brings the cause to this court on error.
The plaintiff in error assigns twenty-seven errors. They will not be set out here, but such of them only as it may be deemed necessary to discuss will be stated as we proceed.
It appears from the record that on the 12th day of June, 1888, one Duff Green, who otherwise appears to have been a policeman, made a complaint before the police judge of the city of Omaha against one Frank Miller for grand larceny, in stealing, taking, and carrying away from the premises, 818 Park Place, in the city of Omaha, certain silverware, describing it, of the value of $94, the property of E. J. Lalk. The name of Charles White does not appear in the charging part of this complaint, but, contrary to the usual form, just below the venue there was a title in which the name “ Charles White” does appear after that of “Frank Miller, alias Frank Wilson.” The appearance of the name of plaintiff in error upon the paper in that manner has, as I conceive, no legal significance. It also appears that a joint warrant was issued by the said police judge for the arrest-of Frank Miller, alias Frank Wilson, and Charles White; that they were brought before the police judge, whereupon Wilson waived an examination
Section 493 of the Criminal Code provides that “A motion in arrest of judgment may be granted for either of the following causes: First — That the grand jury, which found the indictment, had no legal authority to inquire into the offense charged by reason of its not being within the Jurisdiction of the court,” etc.
At the time of the adoption of the Code containing the section above in part quoted there was but one method of bringing a criminal action of the grade of felony within the power and jurisdiction of a court for trial and the punishment of an offender; that was by indictment by a grand jury. Then, although, as now, the law provided for the making of a complaint before a magistrate against persons accused of crime, for the arrest of such persons, the bringing of them before such magistrate or some other magistrate of the county, and for the examination and holding to bail, or committing of such accused person; yet such proceedings were not, in a strictly legal sense, a necessary part of the prosecution of such person for the crime; but a grand jury could, and still can, for that matter, without regard to previous charge, arrest on examination, receive and act upon original charges made by one of their own number, or any other person who may desire to come before them for that purpose, against any person, and upon suffi
The act of March 9, 1885, gave to the several courts of this state jurisdiction to hear, try, and determine prosecutions upon informations for crimes, misdemeanors, and offenses. Section 8 of said act provides that “no information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination,” with a proviso that such limitations shall not apply to fugitives from justice. Here is an important departure from the course of procedure in prosecutions for criminal offenses. Formerly, as we have seen, it was the indictment that gave jurisdiction of the offense — in the sense in which we are now speaking of it— to the court to try the offender. Now, in proceeding under the said act, it is the information for such offense, and the “preliminary examination therefor, as provided by law,” that gives the court “ the same power and jurisdiction to hear, try, and determine that it possesses when proceeding upon an indictment.” It therefore becomes necessary to determine what is provided by law in respect to the preliminary examination of persons for offenses.
Section 283 of the Criminal Code provides that “ every sheriff, deputy sheriff, constable, marshal, or deputy marshal, watchman, or police officer shall arrest and detain any person found violating any law of this state, or any legal ordinance of any city or incorporated village, until a war
We have seen that under the statute of 1885 an information gives the district court the same jurisdiction of an offense and to try and punish the offender that an indictment does; but unlike an indictment the information depends for its legal existence upon a preliminary examination of the offender, and this examination must have been “ as provided by law.” The law, as we have seen, provides, as a necessary and indispensable part of or antecedent to such examination, that the accused should have been charged upon oath with the commission of the offense.
The statute of Michigan providing for the arrest and examination of offenders and the taking of bail is somewhat more comprehensive than our own. It makes it the duty of the magistrate taking án examination to take down in writing the depositions of the witnesses, but does not, in terms, require the magistrate upon the examination to cause the depositions of the witnesses as taken down by him to be read over to them before signing; but, as was said by the court in the case hereafter cited, “Such is the common practice and should be required,”
The case of People v. Chapman, 62 Mich., 280, came before the supreme court of that state in 1886. Chapman had been tried and convicted upon information of a most heinous and revolting crime, and brought the case upon error. The supreme court in the opinion, after ruling every point arising upon the merits against the accused and showing that he was guilty beyond a peradventure, says (p. 288): “A serious difficulty arises, however, when we consider the manner of the preliminary examination of the accused upon which he was held to trial 'in the circuit.
“It appears, without any contradiction, that during the
“ If the language of the witness, as taken by the magistrate, is not read to the witness, or by him before signing, for the purpose of correction, there can be no certainty that the deposition of the witness so written and signed is as it was actually stated under oath. * * *
Upon the question of jurisdiction the case at bar is afar stronger one than the above. There the want of jurisdiction in the circuit court, to try and punish Chapman upon the information, arose out of a mere irregularity in the preliminary examination; for that reason he had not had a preliminary examination, according to law. But here no magistrate has ever had jurisdiction to give White a preliminary examination, for the reason that he has never been charged on oath with the commission of an offense, and without that, as we have seen, no legal process could be issued against him, nor could he be placed upon trial, preliminary or final. The conviction, therefore, cannot stand. I do not think, however, that it follows that the accused must necessarily be discharged from custody. If the authorities of Douglas county claim the right to take him back there, and a complaint under oath is made against him before a magistrate for the commission of the offense, I see no reason why they may not do so.
The judgment of the district court is reversed and the case remanded.
Reversed and remanded.