Blodgett v. State

• Decision Date: 07 January 1897
• Citation: 50 Neb. 121,69 N.W. 751
• Parties: BLODGETT v. STATE.
• Court: Nebraska Supreme Court

50 Neb. 121

69 N.W. 751

BLODGETT

v.STATE.

Supreme Court of Nebraska.

Jan. 7, 1897.

Syllabus by the Court.

1. A motion or objection directed to an indictment or information as a whole will be overruled unless applicable to each count thereof.

2. A charge of malpractice against an attorney and counselor at law may be joined with a prosecution for a contempt of court where both charges involve a single transaction.

3. A finding without a judgment in a summary prosecution for contempt of court will not be reviewed by means of proceedings in error.

4. The test by which to determine the sufficiency of an indictment is whether enough remains, after rejecting all unnecessary averments thereof, to satisfy the requirements of the statute.

5. The remedy of the accused in an indictment or information is by plea, and not by motion to strike unnecessary and immaterial allegations.

Error to district court, Lancaster county; Hall, Holmes, and Cornish, Judges.

Harrison H. Blodgett was convicted of contempt and of malfeasance as an attorney, and brings error. Affirmed.

Jas. E. Philpott, for plaintiff in error.

A. S. Churchill, Atty. Gen., Geo. A. Day, Dep. Atty. Gen., and W. H. Woodward, Co. Atty., for the State.

POST, C. J.

The plaintiff in error was prosecuted in the district court for Lancaster county by means of an information presented by the county attorney, in which he is, by the first count, charged with a constructive contempt of court, in the willful attempt to hinder the due administration of justice in a proceeding pending before said court, and, by a second count thereof, with malfeasance as an attorney and counselor at law, under the provisions of section 6, c. 7, Comp. St., entitled “Attorneys.” The allegations of the first count which are deemed material to the present inquiry are, in substance, as follows: The plaintiff in error, on the 24th of October, 1895, being the defendant in an action then pending and on trial in said court, in which the Lincoln Savings Bank was plaintiff, willfully conspired with one Wenzel to corrupt certain jurors previously impaneled and sworn to try the issues in said cause; that pursuant to such conspiracy, and with the knowledge and procurement of the plaintiff in error, said Wenzel approached one of the jurors so engaged in the trial of said cause, and, with money furnished for such purpose by the plaintiff in error, treated said juror to intoxicating liquors, and at said time requested him (the said juror) to “stand for Blodgett,” meaning thereby that said juror should in said cause endeavor to secure a verdict favorable to the plaintiff in error. The second count differs from the first in one respect, viz. the plaintiff in error is therein described as an attorney and counselor at law, engaged in the practice of his profession in the courts of this state, and it is charged that the acts above enumerated were done by him as such attorney and counselor at law, with intent, corruptly, to influence and deceive the district court in the disposition of the cause above mentioned. Upon the filing of said information, the plaintiff in error, who had in the meantime been arrested in obedience to a capias issued by order of court, was, on his own request, allowed time within which to plead thereto. He subsequently interposed motions to strike portions of each count, and to quash each count of the information, on the ground of misjoinder, which motions were, in turn, overruled, as were also demurrers to the several counts. He thereupon filed an answer denying seriatim the material allegations of the information, and demanding that he be discharged, and the proceeding against him dismissed, which motion was likewise overruled. Having refused to plead further, a plea of not guilty was entered by order of court, which was followed by a hearing and general finding of guilty as to each count of the information, upon which judgment was entered disbarring the accused from practice as an attorney and counselor before the district court for the Third judicial district, and committing him to the custody of the sheriff until payment of the cost of prosecution, taxed $______.

In this proceeding to review the judgment thus rendered, we will, for convenience, first notice the assignments which present the refusal to dismiss the information upon the filing of the answer to which reference has been made. It has been held that in all prosecutions for contempt arising out of proceedings in common law actions, or which are cognizable by courts of law, as distinguished from courts of equity, the answer of the accused unequivocally denying the alleged contemptuous act, unless committed in facie curiæ, is conclusive in his favor. 4 Enc. Pl. & Prac. 795, and cases cited. But the applicability of that rule to our practice is a question not presented by this record, since the motion was directed to the information as a whole, and not merely to the charge of contempt.

The argument of the plaintiff in error, so far as it relates to this branch of the case, appears to rest upon the assumption that...