Korth v. State

• Decision Date: 09 January 1896
• Citation: 46 Neb. 631,65 N.W. 792
• Parties: KORTH v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 631

65 N.W. 792

KORTH

v.STATE.

Supreme Court of Nebraska.

Jan. 9, 1896.

Syllabus by the Court.

1. Affidavits presented as evidence on a hearing in proceedings in a case in the district court will not be examined in this court unless made of the record by being embodied in a bill of exceptions.

2. When an application for discharge is made by a party charged with the commission of a crime for the reasons stated in section 391, Cr. Code, that three or more terms of court have elapsed since the one at which the information was filed against him, without his being brought to trial, and the delay has not happened on his application, or been occasioned by want of time to try it, the last two stated facts must appear affirmatively in the record by showing made, if not otherwise. In an examination by this court to determine the propriety of the action of the district court in overruling such application they will not be presumed, but the presumption that the court proceeded regularly and without error will prevail.

3. The provisions of section 21, c. 7, Comp. St. 1895, as follows: “In the absence, sickness, or disability of the county attorney and his deputies, the court before whom it is his duty to appear, in which there may be business for him, may appoint an attorney to act as county attorney, by an order to be entered upon the minutes of the court, but who shall receive no compensation from the county except as provided for in section six of this act (section 20, this chapter),”-- held applicable to the prosecution of offenses by information, established by the act of 1885 (Comp. St. 1895, c. 14, art. 1, § 69, subd. 33), and to warrant or authorize the trial court to appoint an attorney to perform the duties required of the county attorney in any particular case being prosecuted under the law in regard to prosecutions for offenses by information, whenever the conditions exist as stated in section 21, c. 7, herein quoted; and that the enactment allowing such appointment is not in conflict with the provisions of section 10 of the bill of rights in the portion wherein it refers to the legislature providing by law for holding persons to answer for criminal offenses on information of a public prosecutor.

4. In a criminal case “the accused shall be taken to have waived all defects which may be excepted to by a motion to quash or a plea in abatement by demurring to an indictment or pleading in bar or the general issue.” See Cr. Code, § 444. And if a plea to the general issue has been entered, and has not, on leave obtained, been withdrawn, a plea in abatement need not be entertained.

5. Where a transcript of the proceedings at the preliminary examination, and the information upon which such examination was had, were lost or mislaid from the files of the district court, an order for the substitution of another transcript of such record and copy of the information was proper, and not erroneous.

6. The record of the proceedings in the examining court disclosed that a complaint was filed, which contained a charge of the crime for which plaintiff in error was tried in the district court, and that he was arraigned thereupon, and waived examination. Held sufficient to show fulfillment of the requirements of section 585 of the Criminal Code in regard to preliminary examination.

7. A number of separate and distinct felonies, all of which may be tried in the same manner, which are of the same general character, require for their proof evidence of the same kind, and the punishment of the same nature, may be charged in separate counts of one information, and the party thus charged may be placed on trial for all of such counts at the same time. The question of whether the state will be required to elect between the several counts if a motion is made by defendant that it be so required will rest in the sound discretion of the trial court, and, unless it appears that there has been an abuse of such discretion in overruling the motion it will not be available as error.

8. In the case at bar the defendant was charged with embezzlement of the funds of a county while he was its treasurer, in an information containing several counts charging several and distinct embezzlements. He made a motion that the state be required to elect upon which of the several counts of the information it would prosecute him. The trial court withheld its ruling upon this motion until the close of the introduction of the state's testimony in chief, at which time the motion was sustained, and the state required to elect under which count of the complaint it would further proceed. Held, so far as the record discloses, there was no abuse of discretion in the action of the trial court.

9. It is not error to refuse to give an instruction when the main purpose sought to be effected by giving the instruction is clearly and fully embraced in and accomplished by other instructions, read to the jury, and it appears that no prejudice could have resulted to the rights of the complaining party by reason of such refusal.

10. The act of the legislature of 1891 entitled “An act to provide for the depositing of state and county funds in banks” (Sess. Laws 1891, p. 347, c. 50) did not repeal so much of section 124 of the Criminal Code as is in relation to loaning county funds, and constitutes such loaning by an officer intrusted with its care and disbursement an embezzlement.

Error to district court, Antelope county; Kinkaid, Judge.

Carl Korth was convicted of embezzlement of public money, and brings error. Affirmed.H. C. Brome, Douglas Cones, and Barnes & Tyler, for plaintiff in error.

A. S. Churchill, Atty. Gen., and Geo. A. Day, Dep. Atty. Gen., for the State.

HARRISON, J.

On December 15, 1891, an information was filed in the district court of Pierce county charging the plaintiff in error with the crime of embezzlement of public money, the property of such county, during the time he was treasurer thereof. On the 27th day of April, 1893, the application of plaintiff in error for a change of venue was granted, and the case was sent to Antelope county for trial. December 23, 1893, as a result of a trial, a verdict of guilty was renderedand entered, and, after motions for new trial and in arrest of judgment were heard and overruled, plaintiff in error was sentenced to a term of three years' imprisonment in the penitentiary. He has presented the cause to this court on petition in error. A bill of exceptions was filed, which was attacked on the part of the state by a motion to quash, which was sustained, as a consequence of which action we will be confined in our examination of the points raised on the application by the assignments of error to those which can be discussed and determined without reference to the bill of exceptions.

One assignment of error refers to alleged misconduct of the court during the trial. The facts on which this assignment depends for its force were made a part of the record by affidavits in which they were set out. There were also counter affidavits in relation to the same matter filed for the state. Affidavits of the character of these, in order that the subjects embraced in them may be available in the presentation of questions in this court, must be preserved in a bill of exceptions; and if it was done in this case the bill of exceptions has been quashed, consequently the facts with relation to this objection are not properly before this court for examination. It follows that the assignment of error is unsupported, and must be overruled.

During the pendency of the cause, and before trial, the plaintiff in error made application by motion to be discharged on the ground that four terms of court succeeding the one during which the information under which he was prosecuted was filed had passed without a trial being accorded him, and that the delay or failure to bring the cause to trial was not occasioned by any application or act of his, or by lack of time. Affidavits were filed in support of the motion to show that the trial of the case had not been delayed on application of the plaintiff in error, or for want of time, and on the part of the state mainly directed to an attempt to show the opposite to be true as to both facts; but the affidavits are not presented to this court by a bill of exceptions, and we cannot examine or consider them. The record before us does not disclose that the delay in the trial of the cause was caused in any manner by the plaintiff in error, or for lack of time at any term of the court to try it; nor does the contrary appear. For the purpose of the motion, doubtless it devolved upon the plaintiff in error, if not disclosed by the record, to show that there had been no postponement of the trial of the cause on his application, or that the delay was not occasioned by want of time to try it during the third term of court held subsequent to the term at which the information was filed. In the absence of the appearance of these facts in the record, or a showing in regard to them, we think the presumption must prevail that the court proceeded regularly, and without error, and properly held and placed the plaintiff in error upon trial at the time it did; or it will not be presumed that the trial court, in the face of the existence or a showing of the existence of the facts which entitled the plaintiff in error to his discharge under the provisions of section 391 of the Criminal Code, ignored his constitutional right to a speedy trial (see Bill of Rights art. 1, § 11), and improperly held and tried him for the crime with which he was charged.

Another contention is that the information filed in the case was not made or filed by any officer or person authorized by law. The information was made and filed by W. W. Quivey, who was not the county attorney of Pierce county at the time, and whose authority, if he possessed any, was derived from an order of the court in this particular case, which was as follows: ...