Bohannan v. State
| Decision Date | 02 January 1884 |
| Citation | 15 Neb. 209,18 N.W. 129 |
| Parties | BOHANNAN v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Lancaster county.
Mason & Whedon, for plaintiff.
The Attorney General, for defendant.
Taking up the errors alleged in the order of their presentation by the prisoner's counsel, the first to be considered is the one assigned upon the plea in abatement. The record contains the plea, the reply of the district attorney thereto, and a demurrer to the reply; also a motion filed subsequently to the demurrer to require the reply to be made more definite. The demurrer and motion were overruled, whereupon the prisoner asked leave to sign his plea in abatement, which was overruled. It had already been signed by his attorneys. Exceptions were taken to these several decisions. There was no error in refusing the personal signature of the prisoner to the plea. The signature of his attorneys was sufficient, it having been duly verified by his own oath. Besides, even if, in order to have been technically correct, the personal signature of the prisoner in place of that of his attorneys had been necessary, this technicality was waived by the filing of the reply. It was thereby accepted by the prosecution as sufficiently formal, and the only question concerning it was that of merit.
The plea in abatement asserts the illegality of the grand jury in this, that the “list” of persons from which the jurors were drawn was not composed of persons taken in due proportion from each of the several districts of the county, as directed by section 658 of the Code of Civil Procedure; that the disproportion was from one to three, more or less, in several of the precincts. The plea simply asserts this departure from the required ratio, and that it was caused by a total “disregard of the law” by the county commissioners in making the list.
To all of this the district attorney, by his reply, opposed what is in effect a general denial. The first clause of his reply is in terms a general denial; and by the second clause it is simply alleged, in substance, that the commissioners made the selection “as nearly as could be a proportionate number from each precinct in said county.” There is no mention of how, or on what particular basis, the ratio adopted by the commissioners was determined. In this respect, if the law had been really observed, the reply might have been improved upon. If the commissioners took the best means at their command, as, for instance, the vote of the precincts at the last general election, the reply should have so stated. In that case, if the apportionment conformed to it as nearly as practicable, it would have been valid, although not conformable to the actual ratio of qualified voters then living in the several precints. Polin v. State, 16 N. W. REP. 898. Although they are somewhat crude, the pleadings present an issue of fact squarely as to whether the list of jurors was properly selected, and, on this issue, the prisoner had the right to produce the evidence he offered, and be heard. If the disproportion, alleged on the one hand and denied on the other, actually existed on the basis adopted by the commissioners, or if they adopted no basis at all, or an unfair one, and there existed in fact the alleged disproportion as to persons in the several precincts qualified to serve as jurors, then the list was illegal, and the plea well taken. Such being the condition of the pleadings, and the character of the issue made by them, the ruling of the court in denying a trial of it was clearly erroneous. But, it has been suggested that inasmuch as this point was not made in the motion for a new trial it was waived, and is not now available to the prisoner. This, however, is a mistake. This idea is based upon a misconception of the province of a motion for a new trial, by which only such rulings as are made during the trial proper are intended to be reviewed and corrected by granting it. “A new trial, after verdict of conviction, may be granted on the application of the defendant, for any of the following reasons, affecting materially any of his substantial rights: First, irregularity in the proceedings of the court, or the prosecuting attorney, or the witnesses for the state, or any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial; second, misconduct of the jury, or the prosecuting attorney, or of the witnesses for the state; third, accident or surprise which...
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...although not mentioned in a motion for a new trial, because they are not grounds for which a new trial can be moved. In Bohanan v. State, 15 Neb. 209, 18 N. W. 129, it was asserted that the ruling on a plea in abatement could be reviewed without having been assigned as error in the motion f......
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