Blenkiron v. State

• Decision Date: 03 April 1894
• Parties: BLENKIRON ET AL. v. STATE.
• Court: Nebraska Supreme Court

40 Neb. 11

58 N.W. 587

BLENKIRON ET AL.

v.STATE.

Supreme Court of Nebraska.

April 3, 1894.

Syllabus by the Court.

1. Where the trial court overruled defendant's challenge for cause to a juror, and the record is silent as to the manner in which the juror was dismissed, and does not show that the defendant was compelled to exhaust his peremptory challenges to exclude him from the jury, and the record does not disclose that the party challenged was not one of the jurors who tried the case, held that, so far as the record discloses, there was no prejudicial error in overruling the challenge to the juror.

2. In the cross-examination of a witness it is competent to interrogate him in regard to any interest, pecuniary or otherwise, and the extent of such interest which he may have in the result of the trial of the case in which he is testifying, as affecting his credibility.

Error to district court, Cedar county; Norris, Judge.

James H. Blenkiron and another were convicted of assault and battery, and a motion for a new trial having been denied, they bring error. Reversed.H. A. Miller & Son, B. Ready, and Wilbur F. Bryant, for plaintiffs in error.

Geo. H. Hastings, Atty. Gen., for the State.

HARRISON, J.

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, Neb., before Judge Norris and a jury, on a charge of felonious assault committed upon one A. C. 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 challenge the juror M. S. Merrill, because he has served as a juror in Cedar county, Nebraska, in the past two years, when called as talesman; and we offer to prove that he has so served. (Challenge overruled by the court. Defendants excepted.)” 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 Bohanan 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, 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. Railroad 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 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 $2,500.00 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...