Bradshaw v. State

• Decision Date: 27 May 1886
• Citation: 28 N.W. 323,19 Neb. 644
• Parties: ENOCH BRADSHAW, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

28 N.W. 323

19 Neb. 644

ENOCH BRADSHAW, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 27, 1886

ERROR to the district court for Gage county. Tried below before BROADY, J.

Motion to dismiss sustained.

Colby Hazlett & Bates and L. C. Burr, for plaintiff in error.

William Leese, Attorney General, for the state.

OPINION

MAXWELL, CH. J.

In May 1883, the plaintiff was indicted in the district court of Gage county for the murder of one Henry Voorheis, and was arraigned, and plead "Not guilty." On the trial of the cause the jury found him guilty of murder in the second degree, and he was sentenced to imprisonment for life. The case was brought into this court for review, and no error found in the record. The judgment was therefore affirmed. Bradshaw v. State, 17 Neb. 147, 22 N.W. 361.

In October, 1885, certain relatives of the plaintiff filed a motion in his name for a new trial in the district court of Gage, upon the ground of newly discovered evidence, and filed a large number of affidavits made by different persons, containing statements and allegations which, if true, go far to explain the plaintiff's conduct, prove an alibi, and at least cast a doubt upon the correctness of the verdict of guilty. The district court overruled the motion, apparently on the ground that the statute did not authorize the proceeding, and the cause is again brought into this court on error. The attorney general now moves to dismiss the proceedings for want of jurisdiction. The question presented is, the authority of the district court to entertain a motion for a new trial filed after the expiration of the term at which the judgment was rendered. The subject is regulated entirely by statute.

Section 490 of the criminal code provides that, "a new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following reasons, affecting materially his substantial rights: 1st. 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. 2d. Misconduct of the jury, or the prosecuting attorney, or witnesses for the state. 3d. Accident or surprise which ordinary prudence could not have guarded against. 4th. That the verdict is not sustained by sufficient evidence, or is contrary to law. 5th. Newly discovered evidence material for the defendant, which he could not with reasonable diligence have discovered and used at the trial. 6th. Error of law occurring at the trial."

"Sec 491. The application for new trial shall be by motion upon written grounds filed at the term the verdict is rendered, and shall, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, be within three days after the verdict was...