1 Neb. 385 (Neb. 1871), Burley v. State

Citation:1 Neb. 385
Opinion Judge:MASON, Ch. J.
Party Name:Burley v. The State
Attorney:C. H. Brown, for the plaintiff in error.
Judge Panel:MASON, Ch. J., LAKE, J.
Court:Supreme Court of Nebraska

Page 385

1 Neb. 385 (Neb. 1871)



The State

Supreme Court of Nebraska

December, 1871

Page 386

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Page 387

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Page 388

This was an indictment for murder. Its caption was thus:

"THE STATE OF NEBRASKA, Lincoln County, ss.

Of the November term of the District Court of the Third Judicial District, held in and for the county of Lincoln pursuant to appointment and notice of his honor L. CROUNSE, judge of said district, in the year of our Lord, 1868."

Attached to the record, but apparently not a part of the transcript certified by the clerk of the District Court, are the following papers: A copy of an affidavit made by Charles L. Jenkins, of the publication, for forty days prior to November 2d, 1868, in the Omaha Republican, a newspaper published at Omaha, of a notice given by "L. CROUNSE, judge Third Judicial District," that a term of court would be held at North Platte, in and for Lincoln county, commencing on the 25th day of November, 1868; a copy of the proceedings of the county commissioners of said county, ordering that Judge CROUNSE be requested to hold such term of court; an order made by Judge CROUNSE thereon that such term be held.

The record did not show that any venires for the grand or petit jurors had been issued or that the court had made any order that they be summoned, but recited that "thereupon O. O. Austin, sheriff of said county, made return of the following grand jurors as having been regularly summoned." It also showed that the persons thus summoned appeared, when seven were excused, and "a like number from the list of petit jurors transferred to complete the panel of grand jurors." This indictment was returned on the 26th of November, 1868. On the 30th of the same month the defendant was arraigned and plead "not guilty," without prejudice to his right of interposing any other plea. He, on that day, filed his motion to quash the indictment which, after argument, was overruled. Thereupon he filed his plea to the jurisdiction, which was also overruled. The venue was then changed by the court to Dodge county.

The trial was had at a special term of the District Court for Dodge county, commencing on the 28th day of December, 1868. No plea of "not guilty" was interposed, except that mentioned above. The trial commenced on that day and the taking of testimony was continued through that and the two following days, and on the 31st the jury returned a verdict of guilty. The record did not show that the prisoner was present at any time during the trial, or at the rendition of the verdict.

On the trial three witnesses severally testified that they were at dinner at the shanty where the killing took place; that the deceased then said that he was going to try to buy eight mules for $ 800. He drew from his pocket book a fifty dollar bill to make a bet with the prisoner, who took and returned it to him, and, with a sinister look, asked him if he had more, to which he replied that he had. After dinner the witnesses left the shanty, the deceased and the prisoner remaining alone, and went to work chopping wood about four hundred yards distant, when they heard a pistol shot. They then went to the cabin and found the deceased shot dead. They afterwards found his pocket book lying open on the ground two hundred yards distant.

On cross-examination by the prisoner's counsel, they were asked if they drank intoxicating liquors at dinner. Objection was made to the question which the court sustained, and the prisoner excepted.

The cause was brought here by writ of error.

Reversed and remanded.

C. H. Brown, for the plaintiff in error.

I. There was error on the part of the court below in overruling the motion of the accused to quash the indictment.

1. The presentation of the accused in the indictment is in the name of The People. It should have been in the name of the State of Nebraska.--Sec. 10, Constitution of Nebraska, title "Judiciary;" Sec. 1, Id. "Schedule;" Sec. 166, Criminal Code.

2. The indictment purports to have been found at a November term of the District Court for Lincoln county. Such a court is not known to the laws of our State.--3 Session Laws of State, page 50, sec. 5, 6, 7, 8; Wharton's Precedents of Indictments and Pleas, page 1.

3. All the allegations necessary to confer full authority and jurisdiction upon the court should be apparent, and fully set forth in the indictment.--Wharton's Crim. Law, sec. 223; 1 Bish. Crim. Pro. sec. 152.

II. It was error on the part of the court below, overruling and dismissing the plea to the jurisdiction of the court.

1. It was a sworn plea and tendered to the court facts raising an issue, and should have been answered by the State by demurrer or replication. The issue thus raised should have been tried and judgment rendered...

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