Bartley v. State

• Decision Date: 03 January 1898
• Docket Number: 9347
• Citation: 73 N.W. 744,53 Neb. 310
• Parties: JOSEPH S. BARTLEY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

73 N.W. 744

53 Neb. 310

JOSEPH S. BARTLEY v. STATE OF NEBRASKA

No. 9347

Supreme Court of Nebraska

January 3, 1898

ERROR to the district court for Douglas county. Tried below before BAKER, J. Affirmed.

AFFIRMED.

Charles O. Whedon and T. J. Mahoney, for plaintiff in error:

The warrant under which the arrest was made was invalid and the information should have been quashed. (Rafferty v People, 69 Ill. 111; Garcia v. Sanders, 35 S.W. 52.)

The plea in abatement should have been sustained on the ground that another criminal action charging defendant with the same offense was pending in another county. (State v. North Lincoln S. R. Co., 34 Neb. 634; Monroe v. Reid, 46 Neb. 331; Gamsby v. Ray, 52 N.H. 513; Commonwealth v. Churchill, 5 Mass. 174; Coaldale Brick & Tile Co. v. Southern Construction Co., 19 So Rep. [Ky.] 45; Parker v. Colcord, 2 N.H. 36; Demond v. Crary, 1 F. 480; Curtis v. Piedmont Lumber, Ranch & Mining Co., 13 S.E. [N. Car.] 944.)

The information fails to allege that the warrant was lawfully issued or that it was of any value, and is therefore insufficient. (State v. Babcock, 22 Neb. 38; State v. Moore, 37 Neb. 507.)

The information is defective in failing to allege that the warrant was issued upon a proper voucher. (State v Moore, 36 Neb. 579; Moore v. Garneau, 39 Neb. 511.)

The count upon which defendant was convicted does not mention the county wherein the crime was alleged to have been committed and the count naming the county was abandoned. The state and county are mentioned in the caption, but the caption is no part of the information. The information is therefore insufficient, and will not support a conviction. (People v. Jewett, 3 Wend. [N. Y.] 319; State v. McCarty, 54 Am. Dec. [Wis.] 150; Commonwealth v. Stone, 3 Gray [Mass.] 453; Rose v. State, 1 Ala. 28; State v. Freeman, 21 Mo. 481; Mitchell v. State, 8 Yerg. [Tenn.] 514; English v. State, 4 Tex. 125; Allen v. State, 5 Wis. 329; State v. Emmett, 23 Wis. 632; McCoy v. State, 22 Neb. 418.)

An information must charge explicitly all that is essential to constitute an offense and cannot be aided by intendment. (Smith v. State, 21 Neb. 552; Commonwealth v. Smart, 6 Gray [Mass.] 15.)

Whatever is to be proven must be pleaded in the information. (State v. Hebel, 72 Ind. 361; State v. Hayes, 78 Mo. 307.)

The manner in which the money was used should have been stated for the purpose of showing whether the use was illegal. The charge that defendant converted the money to his own use was a legal conclusion rather than a statement of fact. (State v. Brandt, 41 Ia. 593; State v. Parsons, 54 Ia. 405; Hoyt v. State, 50 Ga. 313.)

No demand is alleged in the information, and for that reason it fails to show an improper neglect or refusal to pay. (State v. Munch, 22 Minn. 67; Bolln v. State, 51 Neb. 581.)

The indictment contained several counts for the same act and the prosecuting attorney should have been compelled to elect. (State v. Lawrence, 19 Neb. 307; Aiken v. State, 41 Neb. 263; Blodgett v. State, 50 Neb. 121.)

Challenges to jurors having opinions as to defendant's guilt should have been sustained. (Curry v. State, 4 Neb. 545; Carroll v. State, 5 Neb. 31; Olive v. State, 11 Neb. 1; Cowan v. State, 22 Neb. 519; Miller v. State, 29 Neb. 437; Owens v. State, 32 Neb. 167.)

The misconduct of the prosecuting attorney in referring, in presence of jurors, to attempts at bribery is ground for reversal. (Thompson v. People, 4 Neb. 531.)

References to error in the conduct of the trial judge in asking questions and in making remarks during the trial: State v. Harkin, 7 Nev. 377; State v. Ah Tong, 7 Nev. 148; Hudson v. Hudson, 16 S.E. 349 [Ga.]; Fager v. State, 22 Neb. 340; Chicago, R. I. & P. R. Co. v. Archer, 46 Neb. 914.

The evidence was insufficient to sustain a verdict against defendant, and the motion to direct a verdict in his favor was erroneously overruled. (State v. McFetridge, 84 Wis. 473; State v. Hill, 47 Neb. 456; Suydan v. Merrick County, 19 Neb. 159; Miller v. Wheeler, 33 Neb. 765; Miller v. State, 16 Neb. 179; Commonwealth v. Shepard, 83 Mass. 575; Hamilton v. State, 60 Ind. 193; Pryor v. Commonwealth, 2 Dana [Ky.] 298; Garner v. State, 5 Yerg. [Tenn.] 160; Thalheim v. State, 20 So. Rep. [Fla.] 938; Commonwealth v. Merrifield, 4 Met. [Mass.] 468; Lewis v. State, 28 Tex.App. 140; Commonwealth v. Howe, 132 Mass. 250; Carr v. State, 16 So. Rep. [Ala.] 155; Territory v. Marinez, 44 P. 1089 [Ariz.]; Queen v. Brady, 26 U. Can. Q. B. 13; Tucker v. State, 16 Ala. 670; Lindsay v. State, 19 Ala. 560; State v. Copp, 15 N.H. 212; State v. McDonald, 24 P. 628 [Mont.]; Turley v. State, 3 Humph. [Tenn.] 323; Jordt v. State, 31 Tex. 571; Banks v. State, 28 Tex. 644; Johnson v. State, 11 O. St. 324.)

The state treasurer's bond, not having been approved within the time fixed by statute, was erroneously admitted in evidence. (State v. Lansing, 46 Neb. 514.)

The treasury warrant introduced in evidence was different from that copied in the information and should have been excluded. (State v. Owen, 73 Mo. 440; Sharley v. State, 54 Ind. 168; Haslip v. State, 10 Neb. 590; Prehm v. State, 22 Neb. 676; Williams v. People, 101 Ill. 382.)

The depository bond of the Omaha National Bank was erroneously admitted in evidence. It was not executed according to the requirements of statute. (Richardson v. Woodruff, 20 Neb. 137; Reed v. Merriam, 15 Neb. 325; Sutton v. Stone, 4 Neb. 319; Hendrix v. Boggs, 15 Neb. 469; Baldwin v. Merriam, 16 Neb. 199; Shelley v. Towle, 16 Neb. 194; Sullivan v. Merriam, 16 Neb. 157; Seaman v. Thompson, 16 Neb. 546; Bendexen v. Fenton, 21 Neb. 184; Gue v. Jones, 25 Neb. 634; Adler v. Green, 18 W.Va. 201; Easton v. Ormsby, 27 A. [R. I.] 218; Williams v. State, 6 L. R. A. [Fla.] 821; Chilton v. People, 66 Ill. 501.)

Because the jury did not ascertain and declare in their verdict the value of the property embezzled, the court had no authority to render a judgment. (Armstrong v. State, 21 O. St. 357; Highland v. People, 1 Scam. [Ill.] 391; Sawyer v. People, 3 Gil. [Ill.] 54; Tobin v. People, 104 Ill. 565; Thompson v. People, 125 Ill. 256; Shines v. State, 42 Miss. 331; Ray v. State, 1 G. Greene [Ia.] 316; State v. Redman, 17 Ia. 329; Locke v. State, 32 N.H. 106; McCoy v. State, 22 Neb. 418; McCormick v. State, 42 Neb. 866; Fox v. Phelps, 17 Wend. [N. Y.] 400; State v. Doepke, 5 Mo.App. 590; Cannon v. State, 18 Tex.App. 172.)

The seventeenth instruction was erroneous because it gave undue prominence to the testimony of one class of witnesses. (Markel v. Swobe, 11 Neb. 213; Kersenbrock v. Martin, 12 Neb. 376; City of Lincoln v. Beckman, 23 Neb. 677; First Nat. Bank of Denver v. Lowrey, 36 Neb. 290; Rising v. Nash, 48 Neb. 597.)

By the twenty-first instruction the jury was told that a reasonable doubt must be one arising from a candid and impartial investigation of all the evidence in the case. This is not a correct statement of the law. A doubt may arise from want of evidence. (Carr v. State, 23 Neb. 749; Cowan v. State, 22 Neb. 519; Childs v. State, 34 Neb. 236; Garrison v. People, 6 Neb. 274; Long v. State, 23 Neb. 33.)

C. J. Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state:

The warrant of arrest contained a sufficient recital of the substance of the offense. (State v. Hallback, 18 S.E. [S. Car.] 919; Gay v. De Werff, 17 Ill.App. 417; Murphey v. State, 55 Ala. 252; Rhodes v. King, 52 Ala. 272; Jennings v. State, 13 Kan. 80.)

If the warrant of arrest was defective accused should have moved to quash it before proceeding further. He waived any defect in the warrant. (Redmond v. State, 12 Kan. 138; Alderman v. State, 24 Neb. 97; State v. Downs, 8 Ind. 42.)

The pendency of an information in one court is no ground for a plea in abatement to another information in the same court, or another court of concurrent jurisdiction, for the same cause. (Commonwealth v. Drew, 3 Cush. [Mass.] 282; Hardin v. State, 22 Ind. 349; Commonwealth v. Murphy, 11 Cush. [Mass.] 472; Commonwealth v. Berry, 5 Gray [Mass.] 93; O'Meara v. State, 17 O. St. 87; Smith v. Commonwealth, 104 Pa. St. 339; Eldridge v. State, 9 So. Rep. [Fla.] 448; Commonwealth v. Cody, 42 N.E. 575 [Mass.].)

The reference in the third count of the information to the county already named in the first count and in the caption sufficiently designated the county wherein the offense was committed, though a conviction under the first count was abandoned. (Rema v. State, 52 Neb. 375; Smith v. State, 21 Neb. 552; Moore v. Fedewa, 13 Neb. 379; Alderman v. State, 24 Neb. 97; Mount v. State, 14 O. 295; State v. McKee, 1 Bailey [S. Car.] 651; United States v. Farring, 4 Cranch [U. S. C. C.] 465; United States v. Shoemaker, 2 McLain [U. S.] 114; Reynolds v. State, 3 Kelly [Ga.] 53; Commonwealth v. Wade, 17 Pick. [Mass.] 395; Evans v. State, 24 O. St. 209; Fisk v. State, 9 Neb. 63; Boles v. State, 13 Tex.App. 650; Hutto v. State, 7 Tex.App. 44; Wills v. State, 8 Mo. 45; Commonwealth v. Clapp, 16 Gray [Mass.] 237; Phillips v. Fielding, 2 H. Bl. [Eng.] 131; Rex v. Dent, 1 C. & K. [Eng.] 249; United States v. Hendric, 2 Sawyer [U. S.] 477; State v. Nelson, 29 Me. 329; State v. McAllister, 26 Me. 374.)

The information alleges all the statutory ingredients of the offense charged, and the objection that it does not state the facts showing the alleged conversion is without merit. (Whitman v. State, 17 Neb. 224; Smith v. State, 4 Neb. 277; Wagner v. State, 43 Neb. 5; Hodgkins v. State, 36 Neb. 160; State v. Jamison, 74 Ia. 602; Claassen v. United States, 142 U.S. 140; Hoyt v. State, 50 Ga. 313; Gibbs v. State, 41 Tex. 491; Reed v. McRill, 41 Neb. 207; Sanford v. Jensen, 49 Neb. 766.)

Before resting its case the state elected as to counts. There was therefore no prejudicial...