Blenkiron v. State
| Decision Date | 03 April 1894 |
| Docket Number | 5472 |
| Citation | 58 N.W. 587,40 Neb. 11 |
| Parties | JAMES H. BLENKIRON ET AL. v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cedar county. Tried below before NORRIS, J.
REVERSED AND REMANDED.
H. A Miller & Son, B. Ready, and Wilbur F. Bryant, for plaintiffs in error.
George H. Hastings, Attorney General, for the state.
OPINION
On the 21st and 22d days of October, 1891, the plaintiffs in error, James H. Blenkiron and John C. Blenkiron, were tried in the district court of Cedar county, Nebraska, before Judge Norris and a jury, on a charge of felonious assault committed upon one A. G. Bagley, and the trial resulted in a verdict against the Blenkirons of assault and battery. They filed a motion for a new trial, which was argued and overruled, and the court sentenced them, the sentence being that they should pay a fine of $ 100 and the costs of the prosecution in the sum of $ 235.96. The defendants have come to this court by petition in error and ask that the case be reviewed.
The first error assigned, which is argued in the brief of counsel for plaintiffs in error, is the sixth assignment of the petition, and states that "the court erred in overruling the defendants' challenge for cause of the juror Marcellus S. Merrill." The portion of the record referring to the impaneling of the jury, in which mention is made of Marcellus S. Merrill, and the only place where we find anything regarding this assignment of error, is as follows:
We are nowhere informed in the record of what became of Mr. Merrill or how he was dismissed from the jury, or whether the defendants were forced to exhaust one of their peremptory challenges in order to exclude him from the jury, but the record does disclose the fact that he was not one of the jurors before whom the defendants were finally tried. The record is also silent on the question of whether the juror objected to by the defendants was one of the regular panel of jurors or was called as a talesman. If there was any error in overruling the challenge to the juror Merrill, it was, so far as the record discloses, error without prejudice. In Bohannan v. State, 15 Neb. 209, 18 N.W. 129, it was held: "Although there may be error in overruling a challenge to a juror for cause, yet if the prisoner be not compelled to exhaust his peremptory challenges to exclude him from the panel, it is error without prejudice." And in the text of the opinion it is stated by LAKE, C. J.: "The challenge of this juror for cause ought to have been sustained, but as he did not sit in the case, having been excused or challenged peremptorily, and it not being shown that to exclude him the prisoner was compelled to exhaust his right of challenge, the overruling of it caused no injury." (See also Palmer v. People, 4 Neb. 68; Burnett v. Burlington & M. R. Co., 16 Neb. 332, 20 N.W. 280; Nowotny v. Blair, 32 Neb. 175, 49 N.W. 357.)
The next assignment of error which we will consider is that the court erred in not allowing certain questions to be answered by the witness Bridenbaugh on cross-examination, in reference to his connection as attorney with a civil suit for damages by Bagley against the defendants, based upon the same state of facts or alleged assault as a cause of action, as the criminal charge or complaint in the present case. We will give the portion of the cross-examination of the witness, in which it is claimed the error occurred, in full. It is not very lengthy, and the point will probably be better understood. It was as follows:
Q. What is your business or profession?
A. Why, collecting and practicing law.
Q. I notice this case No. 134, Albert G. Bagley against James H. Blenkiron and John C. Blenkiron, of the civil docket, with John Bridenbaugh marked as attorney for the plaintiff. You are the same Bridenbaugh, are you, that is marked as attorney for the plaintiff there?
State objects, as being improper cross-examination, incompetent, irrelevant, and immaterial. Objections overruled by the court. State excepted.
A. I have a case against these parties in which Mr. Bagley is the plaintiff and I am attorney for him. I do not know whether that is the case or not.
Q. The case that you have for Mr. Bagley against the Blenkirons is a case for civil damages for this alleged assault, isn't it?
State objects, as being incompetent, irrelevant, and immaterial, and improper cross-examination. Objections overruled by the court. State excepted.
A. Yes, sir; it is a case for civil damages.
Q. For civil damages for this same alleged assault?
A. I think so.
Q. Don't you know so?
A. Why, yes, I said I did.
Q. You prepared the papers in that case, did you not?
A. Yes, sir.
Q. In that petition in that case you allege that the doctor's bill is five dollars, don't you?
State objected, as incompetent, irrelevant, and immaterial, and not proper cross-examination. Objections sustained by the court. Defendants excepted.
Q. That suit is for $ 2,500 damages?
State objects, as being incompetent, irrelevant, and immaterial, and improper cross-examination, and merely a scheme or device on the part of the attorney to get something before the jury which he knows he is not entitled to. Objections overruled by the court. State excepted.
A. I think that is the amount, yes, sir, that we are seeking to recover.
Q. Isn't it a fact, Mr. Bridenbaugh, that your fee in that case is contingent on what you recover?
State objects, as being incompetent, irrelevant, and immaterial, and not proper cross-examination. Objections sustained by the court. Defendants excepted.
* * * *
Q. Now, have you had any conversation with Mr. Blenkiron about these transactions since that time?
State objected, as being incompetent, irrelevant, and immaterial, and not proper cross-examination. Objections overruled by the court. State excepted.
A. Why, I don't recollect any conversation with him; no, sir.
Q. Were you at the preliminary examination of this case?
A. I don't remember whether I was or not. I have forgotten all about whether I was or not. I don't recollect any preliminary examination that was had.
Q. You have a law office here in town, haven't you?
A. Yes, sir.
Q. The night before the preliminary examination in this case didn't you ask the two defendants to go up into your office with you?
State objects, as being incompetent, irrelevant, and immaterial, and improper cross-examination. Objections overruled by the court. State excepted.
A. I met him on the north side of the Hartington State Bank there in the evening, and he said he wanted to speak to me, and I stopped, and we stood there a moment and John C. Blenkiron came up. He was right at hand there, close, and James H. Blenkiron came to me and asked me,--he said, "I want to know what you are going to swear to in that case." I said, "Mr. Blenkiron, if I testify in the case, why you will probably hear it." Otherwise I didn't want him to talk to me about it. He said he didn't want me to testify to anything but the truth. I said: "Mr. Blenkiron, I am not in the habit of testifying to anything but the truth and I wish you would go away and let me alone." What I believed was that he was trying to tip me or buy me off. I intimated very strongly that he could not do anything of the kind. That was the conversation.
Defendants move to strike the last part of the last above answer from the record. Motion sustained.
Q. Did they go with you to your office at that time?
A. Then?
Q. I asked you if they went with you to your office at that time?
A. They were in my office that evening; yes, sir, after that.
Q. And they went right up with you after that?
A. I think they did. I think they went up with me.
Q. Didn't you ask them to go with you?
A. Well, I will tell you how that occurred.
Q. Didn't you ask them to go up with you?
A. I finally asked them to go up into my office; yes, sir, but it was after some other conversation that we had.
Q. Well, now, when they were up in your office isn't it a fact that you presented a bill to James H. Blenkiron, the defendant here, for attorney's fees and demanded payment--for sixty-five dollars--and did you not say that if he refused to pay the bill that you would testify against him in this case and do him all the harm you could?
A. I didn't tell him any such thing.
Q. That is false, is it?
A. The latter part is entirely false.
State objects, as being incompetent, irrelevant, and immaterial, and not proper cross-examination, and moves the court to strike the answer from the record. Objections and motion overruled. State excepted.
Q. Mr. Bridenbaugh, is it not a fact that on the evening before the preliminary examination in this case, at Hartington, Cedar county, Nebraska, in your office, in the presence and hearing of these defendants, James H. Blenkiron and John C. Blenkiron, you presented a bill for sixtyfive dollars attorney's fees to the defendant James H. Blenkiron and demanded payment, and stated to him that if he did not pay that bill that you would testify against him in this case and do him all the harm you could, or words to that effect?
State objects, as being incompetent, irrelevant, and immaterial, and there is no proper foundation laid for the question of impeachment. Objections sustained by the court. Defendants excepted.
The action of the court in sustaining the objection to the last interrogatory above quoted it is insisted was erroneous, and possibly it...
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