Brown v. State

• Decision Date: 30 September 1879
• Citation: 9 Neb. 157,2 N.W. 378
• Parties: JOHN BROWN, ALIAS JOHN WILLIAM MCELVOY, PLAINTIFF IN ERROR v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 157

2 N.W. 378

JOHN BROWN, ALIAS JOHN WILLIAM MCELVOY, PLAINTIFF IN ERROR

v.THE STATE OF NEBRASKA, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed September, 1879.

Error from the district court for Adams county.

Mason & Wheden, for plaintiff in error.

C. J. Dilworth, Attorney General, for defendant in error.

MAXWELL, C. J.

The plaintiff in error was convicted of murder in the first degree at a special term of the district court of Adams county, held in February, 1870. He now assigns various errors in the record, which will be taken up in their order.

The order calling the special term is as follows:

“Pursuant to the provisions of the constitution of the state of Nebraska, I hereby fix Saturday, February 15, 1879, at 8 o'clock A. M., as the time for holding a special term of the district court in and for Adams county, fifth judicial district of the state of Nebraska, for the purpose of disposing of any and all business that may properly come before the court. The sheriff of said Adams county is also hereby ordered to summon from the body of the county of Adams sixteen good and lawful men having the qualifications of and to serve as grand jurors; also twenty-four good and lawful men having the qualifications of and to serve as petit jurors--all to be and appear at the place of holding court in the town of Hastings, in said county of Adams, at 8 o'clock A. M. on said fifteenth day of February, 1879.

WILLIAM GASLIN, Jr., Judge.”

Section 26, art. 16 of the Constitution provides that, “until otherwise provided by law, the judges of the district courts shall fix the time of holding courts in their respective districts.” The power thus conferred undoubtedly refers to regular terms of court, which already had been fixed by the judge. A special term of court, for the transaction of all business that may come before it, may be ordered, and by any judge in any county in his judicial district, upon application of the county commissioners. Notice of such special term must be given at least twenty days previous to the commencement of the same. Gen. St. 260, § 51. By the provisions of section 18 (p. 255, Gen. St.) it is provided that “a special term may be ordered and held by the district judge, in any county in his district, for the trial of any criminal offence, if he deem it necessary. In ordering a special term he shall direct whether a grand or petit jury, or both, shall be summoned.” The power to call a special term of court for the trial of criminal offences is here expressly given, as also the power to direct whether a grand or petit jury, or both, shall be summoned. In calling a special term, under the provisions of section 18, it should be stated in the order that the term will be held for the trial of criminal offences; but the failure to do so will not thereby render the term invalid. And the judge having authority, under the statute, to call the special term, the fact that he recited in the order that he called said term in pursuance of the provisions of the constitution will not thereby render the order nugatory, no more than a correct judgment would be affected by superfluous matter that did not affect its validity. So far, at least, as the trial of criminal offences is concerned the order therefor is sufficient to justify the trial of the plaintiff in error at that term.

The authority of a judge to order the sheriff to summon a grand and petit jury may well be questioned. The statute provides the mode of selecting juries, and this...