Barney v. State

• Decision Date: 22 October 1896
• Parties: BARNEY v. STATE.
• Court: Nebraska Supreme Court

49 Neb. 515

68 N.W. 636

BARNEY

v.STATE.

Supreme Court of Nebraska.

Oct. 22, 1896.

Syllabus by the Court.

1. A district judge may, for any lawful cause, discharge a regular panel of the petit jury, and direct the sheriff to call other jurors to take its place.

2. The fact that the jury was illegally drawn is a sufficient cause for discharging it from service.

3. The fact that all, or nearly all, jurors upon the regular panel are disqualified from sitting in any case remaining to be tried at the term, is a sufficient cause for discharging the panel.

4. The provisions of section 465a of the Criminal Code are not exclusive, but are to be construed in connection with section 664 of the Civil Code.

5. Therefore, when the causes exist which authorize the court to order a special venire under section 465a of the Criminal Code, the court may, instead of so doing, in its discretion,--the regular panel being disqualified from sitting in other cases during the term,--discharge that panel, and direct a new jury to be drawn, under the provisions of section 664, Code Civ. Proc.

6. A rule of court is an order made by a court having competent jurisdiction, and therefore, under section 8, c. 5, Comp. St., in a district where there are two district judges the court may, by special order, direct a jury of less than 48 to be drawn; such special order being a “rule,” within the meaning of that section.

7. Permitting names of witnesses to be indorsed on an information after the information is filed is a matter resting within the discretion of the trial court; and, notwithstanding a general rule of court requiring such names to be indorsed within 24 hours after their discovery, a judgment will not be reversed where the application to indorse the names was not made until a later time, provided no prejudice to the accused resulted.

8. The accused having made no motion for a postponement of the trial because of the indorsement of such additional names, no prejudice will be presumed.

9. In a criminal case it is not erroneous to direct the jury that its oath imposes upon it no obligation to doubt where no doubt would have existed if no oath had been administered. Spies v. People, 12 N. E. 865, 17 N. E. 898, and 122 Ill. 1, followed.

10. Where no error appears in the record of a criminal case, and the sentence imposed is one warranted by the statute, it will not be reduced by this court because of apparent undue severity. To so reduce it would, in such case, be an act of clemency, and not a judicial review of the trial; and the exercise of such clemency is a power reposed by the constitution in the governor, and not in this court.

11. Evidence held to sustain the verdict.

Error to district court, Holt county; Westover, Judge.

George L. Barney was convicted of theft, and brings error. Affirmed.R. R. Dickson, for plaintiff in error.

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

IRVINE, C.

The plaintiff in error was informed against in the district court of Holt county for stealing four steers, the property of George Sinlinger. He was convicted, and sentenced to imprisonment in the penitentiary for six years. He brings the case here for review, assigning numerous errors. Several of the assignments relate to the legality of the jury by which the plaintiff was tried. The record discloses that on the 4th day of April, 1896, the court discharged the regular panel of the petit jury for the reason that it had been illegally drawn, and forthwith ordered the sheriff to summon 24 good and lawful men, having the qualifications of jurors, to serve as petit jurors for the remainder of the term. Subsequently, on the 18th day of April, an order was entered reciting that it having been suggested to the court by the county attorney, and other members of the bar, that this special panel having been drawn from for the trial of the case of the state against Fanton and the case of the state against Dunham, and Barney and Dunham being informed against together, and the evidence against the two being largely the same, from such information, and the judge's personal knowledge of the facts, the members of that panel were disqualified from sitting in the trial of the remaining cases, or any other case to be tried at the term, it was ordered that the panel be discharged. The same day an order was entered directing the sheriff to summon 24 other good and lawful men to serve as jurors until discharged. In short, the record discloses that the regular panel was discharged because not lawfully drawn. A new jury was summoned by the sheriff, and this one discharged, because its members were disqualified from sitting on any of the cases remaining to be tried at that term of court, and a third jury was summoned by the sheriff. The plaintiff in error did not object or except to the first order discharging the regular panel. He did, however, move to quash the second panel because the first had been unlawfully discharged; and he moved to quash the third panel, by which he was tried, because of irregularity in the prior proceedings, and because it had not been drawn according to law. Preliminary to his first motion, he sought to correct the record by having it show that, while Dunham had moved to quash the first regular panel, this motion had been withdrawn, and the court quashed it on its own motion, no objection thereto being pending. The court overruled this motion to correct the record. Conceding that the control of its records by a court may be reviewed by appellate procedure, we cannot review this action, for the reason that the evidence on which the court acted in refusing to change the record does not here appear by bill of exceptions, or by any other authenticated record. Nearly all the other questions suggested by this somewhat complicated procedure are not open to review, for the same reason. The motions by which the questions were raised in the trial court were supported by affidavits which are not preserved by any bill of exceptions. The rule is so well settled that we should never be again required to announce it, that in order to make affidavits used on the hearing of a motion a part of the record, in such manner as to permit this court to consider them, they must be embodied in a bill of exceptions. In this state of the case, we have presented merely the power of the court to discharge the regular panel, if illegally drawn; its power to order the sheriff to summon a new jury; its power to discharge that jury when it appears that the men composing it are disqualified from further sitting during the term; and its power to then direct the sheriff to call a third jury. The statutes applicable to the subject are section 664 of the Code of Civil Procedure, and section 465a of the Criminal Code. The latter section was passed as an independent act in 1881, and is the later expression of the legislature. These sections are as follows:

“Sec. 664. Whenever the proper officers fail to summon a grand or petit jury, or when all the persons summoned as grand or petit jurors do not appear before the district courts, or whenever at any general or special term or at any period of a term for any cause there is no panel of grand jurors or petit jurors, or the panel is not complete, said court may order the sheriff, deputy sheriff, or coroner to summon without delay good and lawful men, having the qualifications of jurors, and each person summoned shall forthwith appear before the court, and if competent, shall serve on the grand jury or petit jury as the case may be, unless such person may be excused from serving or lawfully challenged.”

“Sec. 465a. That when two or more persons shall have been charged together in the same indictment or information with a crime, and one or more shall have demanded a separate trial, and had the same, and when the court shall be satisfied, by reason of the same evidence being required in the further trial of parties to the same indictment or information, that the regular panel and bystanders are incompetent because of having heard the evidence, to sit in further causes in the same indictment or information, then it shall be lawful for the court to require the clerk of the court to write the names of sixty electors of the county wherein said cause is being tried, each upon a separate slip of paper, and place the same in a box, and after the same shall have been thoroughly mixed, to draw therefrom such a number as in the opinion of the court will be sufficient from which to select a jury to hear said cause, and the electors whose names are so drawn shall be summoned by the sheriff to forthwith appear before the court, and after having been examined such as are found competent and shall have no lawful excuse for not serving as jurors shall constitute a special venire from which the court shall proceed to have a jury impaneled for the trial of the cause, and the court may repeat the exercise of this power until all the parties charged in the same indictment or information shall have been tried.”

The power of the court to discharge for cause one or more of the regular panel cannot seriously be questioned. This is a matter resting within the judicial discretion of the district judge, and, having discharged certain or all of such regular jurors, the statute first quoted authorizes the court to direct the sheriff to summon others to take their places. Dodge v. People, 4 Neb. 229. This record shows that the regular panel was discharged because not legally drawn. This was certainly a sufficient reason for the order. The reasons given for discharging the second panel were substantially those recited in section 465a of the Criminal Code as justifying the procedure therein provided. In the absence of a bill of exceptions, at least, we must presume that those facts existed; and the court, on that state of facts, having discharged the panel, and ordered the sheriff to summon a new panel, the questionis therefore...