Dickenson v. State

Decision Date08 September 1886
Citation29 N.W. 184,20 Neb. 72
PartiesW. H. DICKENSON ET AL., PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
CourtNebraska Supreme Court

ERROR to the district court for Saunders county. Tried below before POST, J.

REVERSED AND REMANDED.

S. H Sornberger, for plaintiff in error, cited: State v Carothers, 11 Iowa 273. Harris v. Simpson, 14 Am. Dec., 104, note. State v. Daily, 14 Ohio 91. Farley v. Budd, 14 Iowa 289. Powell v State, 15 Ohio 580. Morrow v. State, 5 Kan. 565. Crocker on Sheriffs, secs. 127, 128. Clark v. Cleveland, 6 Hill, 344. Williams v. Shelby, 2 Oregon, 144. Harris v. Simpson, 4 Littell (Ky.), 165.

William Leese, Attorney General and J. R. Gilkeson, for the state, cited: Enyeart v. Davis, 17 Neb. 228. State v. Cannon, 34 Iowa 325. Park v. State, 4 Georgia, 329. Archer v. Hart, 5 Florida, 237. Adams v. Thompson, 18 Neb. 541. Gudtner v. Kilpatrick, 14 Neb. 347.

COBB, J. MAXWELL, CH. J., concurs. REESE, J., did not sit.

OPINION

COBB, J.

This action was brought by the state against the plaintiffs in error, together with one Doan Benson, on a criminal recognizance given by them conditioned for the appearance of the said Doan Benson at the October, 1882, term of the district court for Saunders county, to answer to an indictment preferred against him and his certain co-defendants, for the crime of burglary. Process being served only upon the plaintiffs in error, they made their joint answer in the case, setting up various grounds of defense. A trial was had to the court (a jury being waived) which found for the plaintiff, and thereupon, after overruling a motion for a new trial on the part of the defendants, a judgment was rendered for the plaintiff for the sum of $ 555 together with costs. And thereupon the cause was brought to this court by petition in error.

There are eight errors assigned in the petition in error, but it is not deemed necessary to state them in detail here. It appears from the bill of exceptions that on the 8th day of March, 1882, upon the complaint of Anson W. Hancock, a warrant was issued by the county judge of Saunders county for the arrest of Doan Benson, the principal defendant in the action in the court below, together with three others, for the crime of burglary. On the same day, the said warrant having been placed in the hands of C. M. Pickett (whether sheriff, constable, or person specially appointed to serve the same, does not appear), the defendants were arrested and brought before the said county judges for examination. The said examination was at the defendants' request continued to the 14th day of the same month, and the said defendants entered into bonds with security for their appearance on the said adjourned day. On the 14th day of March, at the hour appointed, the said Doan Benson and one of his co-defendants appeared before the said county judge, waived a preliminary hearing, and entered into bond, with approved security in the sum of $ 500, for their appearance before the district court of said county at the next term thereof, etc. At the next term of said district court, to-wit, on the 8th day of April, 1882, the said Doan Benson, together with his co-defendants in the proceedings above stated, having been jointly indicted by the grand jury of Saunders county for the crime of burglary, the same being the same burglary for which they had been arrested and held to bail by the said county judge as above stated, appeared in the said district court personally as well as by counsel, were arraigned, and severally pleaded not guilty to the said indictment. Thereupon one of the co-defendants of the said Doan Benson elected to take a several trial, was put upon his trial, and tried upon the said indictment be-before the said court and a jury. The said jury failed to agree upon a verdict in said cause, were discharged by the court, and thereupon, as appears by the record and journal entry in said cause, it was "further ordered by the court that the defendants * * Doan Benson * * * *, and * * be held to bail in the sum of five hundred dollars each for his appearance at the first day of the next term of this court to answer the charge against him, and in default thereof that they be committed to the custody of the sheriff. And thereupon the said defendants * * with * * * * as his surety, Doan Benson with W. H. Dickinson and H. H. Dorsey as his surety * * * with * * and * * as his surety and * * * with * * and * * as his surety, and entered into recognizance in accordance with the above order and this cause is continued." It further appears that the said Doan Benson did not appear at the next term of the district court held in and for said county to answer said indictment, but wholly made default, whereupon his default was regularly entered.

The petition, after alleging the finding of the indictment by the grand jury of Saunders county against the said Doan Benson and his co-defendants and the returning of the same into the said court, proceeds as follows: "And thereupon a capias was duly issued for the arrest of the said Doan Benson and placed in the hands of C. E. Lillibridge, the sheriff of said county of Saunders; and at the said time an order was duly made by said court that the bail of the said Doan Benson be fixed at the sum of five hundred dollars, and the said C. E. Lillibridge, sheriff as aforesaid, by virtue of said capias, thereupon duly arrested the said Doan Benson, and took him into custody and retained him, the said Doan Benson, in custody until the 13th day of April, 1882, on which day, while the said Doan Benson was yet in the custody of the said C. E. Lillibridge as aforesaid and during the vacation of said court, the said Doan Benson as principal, and the said defendants, W. H. Dickenson and H. H. Dorsey as sureties, by virtue of said order of the court duly entered into a recognizance to the state of Nebraska" etc. This petition was drawn under the provisions of §§ 430 to 433 inclusive of chap. XLI. of the criminal code, which provides as follows:

"Sec. 430. When any person shall have been indicted for a felony, and the person so indicted shall not have been arrested or recognized to appear before the court, the court may at their discretion make an entry of the cause on their journal, and may order the amount in which the party (indicted) may be recognized for his appearance by any officer charged with the duty of arresting him.

"Sec. 431. The clerk issuing the warrant on such an indictment shall indorse thereon the sum in which the recognizance of the accused was ordered as aforesaid to be taken.

"Sec. 432. The officer charged with the warrant aforesaid shall take the recognizance of the party accused in the sum ordered as aforesaid, together with good and sufficient sureties, conditioned for the appearance of the accused at the return of the writ before the court out of which the same issued; and such officer shall return such recognizance to the said court, to be recorded and proceeded on as provided in this code."

The case made by the pleading is doubtless good under the statute above quoted; but does the evidence sustain the pleading? In reviewing the evidence so far as may be deemed necessary, it may be proper to revert to the point made in sundry modifications of form by the plaintiff in error, based upon the overruling of his objections by the court to the evidence offered by the state: 1st. The plaintiff in error complains of the overruling by the court of his objection to the admission in evidence "of that part of the deposition of S. G. Chany which appears on the face of said deposition to have been taken on the 8th day of May, 1884." By reference to the record it appears that when this deposition was offered on trial counsel objected to it on the ground that it was "irrelevant, incompetent, immaterial, and not the best evidence." But, in the brief, counsel endeavors to sustain this point of the petition in error on the ground that this deposition was introduced for the purpose of contradicting the record. At the time that this deposition was offered it was clearly inadmissible. In connection with the testimony subsequently introduced of the service and loss of the capias which said Chany testified in the said deposition to having theretofore issued, and upon which, upon the theory of the plaintiff in the court below, the said Benson was arrested, the deposition was admissible; and had it been excluded when the objection of plaintiff in error was made it would doubtless have been afterwards re-offered and properly admitted. No error can therefore be now predicated upon its admission, even at a point of time and stage of the proceedings when, as we have above stated, it was inadmissible; and the objection that it contradicts the record cannot be sustained, for the reason that as the case was presented in the court below it comes before the record, and in its absence may have been deemed sufficient to prove so much of the plaintiff's cause of action as depended upon the arrest of the said Benson after the adjournment of court. But little need be said of the second, third, fourth, fifth, and sixth points presented in the bill of exceptions. Upon the theory of the case as presented by the state, ignoring the facts that the defendant Benson had been arrested and brought before the county judge; that he had entered into a recognizance for his appearance at the district court; that he had so appeared, and upon the return of the indictment against him had been arraigned, and had plead thereto, the matters embraced in these points were free...

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2 cases
  • Havis v. State
    • United States
    • Arkansas Supreme Court
    • 27 Junio 1896
    ...with the clerk as part of the record. Sec. 2170, id. The law must be strictly complied with. The bond was not even a good common law bond. 29 N.W. 184; 2 Am. & Eng. Enc. p. 5. Only such officers as are authorized to "let to bail" can approve or take bail. 23 Ark. 278; 35 id. 330. The recogn......
  • Dickinson v. State
    • United States
    • Nebraska Supreme Court
    • 8 Septiembre 1886

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