Bolln v. State

• Decision Date: 18 May 1897
• Citation: 71 N.W. 444,51 Neb. 581
• Parties: BOLLN v. STATE.
• Court: Nebraska Supreme Court

51 Neb. 581

71 N.W. 444

BOLLN

v.STATE.

Supreme Court of Nebraska.

May 18, 1897.

Syllabus by the Court.

1. Chapter 54 of the Criminal Code authorizes prosecutions of felonies by information filed by the public prosecutor of the proper county.

2. A denial of a jury trial upon an issue of fact tendered by a plea in abatement is not reversible error, since the record fails to disclose that the prisoner was in some manner prejudiced thereby.

3. It is not essential to the validity of an information that it should conclude “against the peace and dignity of the state.”

4. An opinion formed by a juror does not affect his competency, or afford cause for challenge, unless it is unqualified as to the guilt or innocence of the accused of the offense charged. Basye v. State, 23 N. W. 811, 45 Neb. 261, followed.

5. An opinion based upon rumor and newspaper reports alone does not afford cause for challenge, where it is shown that such opinion will not interfere with the juror's rendering a fair and impartial verdict upon the evidence under the instructions of the court.

6. Under section 124 of the Criminal Code, the failure of any public officer to account to or make settlement of his official accounts with the proper legal authority within reasonable time after notice so to do, as well as the refusal of such officer to promptly pay over to his successor any public moneys or securities on the legal requirement of any authorized officer, is made prima facie evidence of embezzlement.

7. Held, that the accused was not prejudiced upon the trial by the giving of the fifteenth and sixteenth paragraphs of the charge of the court.

8. Evidence examined, and held sufficient to warrant a conviction for embezzlement of public moneys.

9. Under an information against a public officer charging embezzlement on a certain date, evidence of a continuous series of conversions of money by the defendant at different times and in different amounts before that date will support a verdict finding the aggregate sum as the amount of a single embezzlement.

10. The disbursement of public funds by a city treasurer, except upon a warrant drawn by the proper authority, constitutes embezzlement.

11. A custom or usage repugnant to the commands of a statute will not prevail against such statute.

12. In a criminal prosecution, the presence of the defendant at the trial, being once shown by the record, will be presumed to have continued to the end, where the contrary is not made to appear.

Error to district court, Douglas county; Baker, Judge.

Henry Bolln was convicted of embezzlement, and brings error. Affirmed.J. W. West and J. M. Macfarland, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

NORVAL, J.

Henry Bolln was prosecuted in the district court of Douglas county upon an information filed by the county attorney charging him with the embezzlement of public moneys. The information was in 16 counts, a part of which charged the defendant with embezzlement of certain moneys of the city of Omaha, and the remaining counts were for the embezzlement of certain moneys belonging to the school district of the city of Omaha. A motion to quash the information was made, which was overruled by the court. A plea in abatement was filed, to which the county attorney interposed a demurrer, which was overruled as to the ninth ground of the plea and sustained as to the other 17 grounds therein set forth. The state replied to the ninth paragraph of the plea in abatement, and the accused demanded a jury trial upon said paragraph of his plea, which was denied; and upon a trial to the court it overruled the plea in abatement. The defendant demurred to the several counts of the information, which the court promptly overruled; and, the accused, when called upon to plead to the information, having stood mute, the court entered a plea of not guilty for him. The county attorney by leave of court entered a nolle prosequi as to the fifth and tenth counts of the information, and upon the trial the accused was found guilty as charged in the fourth, ninth, and eleventh counts, but was acquitted as to all the others upon which he was tried. From the denying of his motion for a new trial, the defendant has brought this writ of error. While we are confronted with a record of over 1,000 pages, and a petition in error containing 279 assignments, the questions to be determined are not numerous, since most of the assignments are not discussed in the brief of defendant below. The familiar rule that assignments not relied on in the briefs are deemed waived will be adhered to in this case.

The first contention of counsel for the accused, and which was raised by the motion to quash the information, plea in abatement, and by demurrer, is that there is no authority in this state for the prosecution of crimes by information. The power of the legislature to provide by appropriate enactment for the trial of criminal cases in the district court upon informations filed by the public prosecutor or county attorney, instead of indictments, is not, and doubtless could not be, successfully questioned, in view of section 10, art. 1, of the state constitution, which declares, inter alia, “that the legislature may by law provide for holding persons to answer for criminal offenses on information of a public prosecutor; and may by law abolish, limit, change, amend or otherwise regulate the grand jury system.” Certainly the language quoted is broad enough to justify the lawmaking body in providing for prosecution of offensesby information alone. The argument of the prisoner's counsel is that the legislature of this state has not as yet so enacted, at least by express, plain, and unequivocal language. In 1885 a law was passed, which received executive approval, entitled “An act to provide for prosecuting offenses on information and to dispense with the calling of grand juries except by order of the district judges.” Cr. Code, c. 54. If said act has not, by plain and apt words, made suitable provision for the prosecution of offenses against the penal laws of the state by information, clearly it is not the fault of the title of the law, to which reference has just been had. Language which would have more definitely or appropriately designated such a purpose could not easily have been chosen. But it is argued that there is nothing in the title to indicate that the law was intended to provide for the prosecution of felonies by information. This position is not tenable. The title indicates a purpose to provide for the “prosecution of offenses on information,” and the word “offenses,” in the sense it is used, embraces all infractions of the Criminal Code of the grade of felonies. In Miller v. State, 29 Neb. 437, 45 N. W. 451, it was held that a prosecution for murder may be by information. The object indicated by the title to the act under consideration is clearly enough expressed in the body of the law, as an examination of its several provisions will disclose. The first section (section 578 of said chapter 54) provides “that the several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try and determine prosecutions upon information, for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein, as they possess and may exercise in cases of like prosecutions upon indictments.” By this the same jurisdiction was conferred upon the courts to hear, try, and determine prosecutions for crimes, misdemeanors, and offenses upon information as heretofore existed and had been exercised in like prosecutions upon indictments found by a grand jury. The subsequent sections of of the act, in connection with the one quoted above, not only give authority for the prosecution by information, but point out the procedure as well. Section 2 requires all informations to be filed in term time, in the court having jurisdiction of the particular offense, by the prosecuting attorney of the proper county, and provides that he shall subscribe his name thereto, and indorse thereon the names of witnesses. The next section provides for the verification of all informations, and for joining of different offenses and different degrees of the same offense in one information, in like manner as could be joined in one indictment. The sixth section empowers the court to direct the prosecuting attorney to file the proper information in certain instances. We do not entertain the shadow of a doubt that the statute in question is ample to authorize a county attorney to file informations for felonies in proper cases, and to prosecute the accused thereunder. State v. Miller, 43 Neb. 860, 62 N. W. 238;Korth v. State, 46 Neb. 631, 65 N. W. 792. The trial of the accused upon the information of the county attorney did not contravene section 3, art. 1, of the constitution, which declares that “no person shall be deprived of life, liberty or property without due process of law,” since under and in pursuance of section 10 of the same article the legislature has authorized prosecution of offenses by information.

The ninth paragraph of the defendant's plea in abatement alleged that he had not had a preliminary examination touching the offenses charged in the information, and that he had not waived the same. To this averment the state replied, admitting that the defendant did not have a preliminary examination, denying each and every other allegation in said paragraph of the plea, and averring that the accused waived his right to a preliminary examination. The defendant demanded a trial by jury upon the issue tendered by the ninth paragraph of the plea in abatement, which was overruled, and the trial court found that the defendant had waived a preliminary examination before the examining magistrate, and accordingly overruled said paragraph of the plea in abatement. The denial of a trial by jury to determine whether the right to a...