O'Bryan v. State
| Decision Date | 26 February 1924 |
| Docket Number | 22852 |
| Citation | 197 N.W. 609,111 Neb. 733 |
| Parties | ROBERT C. O'BRYAN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: CHARLES A. GOSS JUDGE. Reversed.
REVERSED.
Baldrige & Saxton and L. A. Hammes, for plaintiff in error.
O. S Spillman, Attorney General, and George W. Ayres, contra.
Heard before LETTON, ROSE, DEAN and GOOD, JJ., ELDRED, District Judge.
In a prosecution by the state in the district court for Douglas county, Robert C. O'Bryan, defendant, was convicted of conspiring with others to commit a felony, and for that offense was sentenced to serve a term of one year in the penitentiary and to pay a fine of $ 1,000. As plaintiff in error he presents for review the record of his conviction.
It is argued that the prosecution should have been abated and the proceeding dismissed on the ground that a prosecuting attorney invaded a constitutional right of defendant by requiring him as a subpoenaed witness to testify against himself before the grand jury that indicted him. Defendant is not entitled to a reversal on this ground, for the reason that he did not, when interrogated as a witness before the grand jury, claim the privilege of declining to testify to facts incriminating himself--a privilege which may be waived by the failure to assert it.
The sufficiency of the indictment was challenged by both motion and demurrer and the overruling of each is assigned as error. Defendant with a number of others was indicted for a conspiracy to commit a felony, a penal offense under a recent statute. Comp. St. 1922, sec. 9543. The felony which defendant and others were charged with a conspiracy to commit was the procuring of money and other property by means of false pretenses. Comp. St. 1922, sec. 9892. According to the indictment the conspirators agreed, in substance, omitting names, to falsely and fraudulently represent that the Great Western Commercial Body Company, a corporation, was solvent and had earned profits for the payment of dividends, and that the conspirators agreed to use these false and fraudulent representations as inducements to prospective purchasers of capital stock of that corporation, and thus to feloniously procure from them money and other property with the intent to cheat and defraud them. The overt acts to effect the object of the conspiracy, like the conspiracy itself, were charged in details unnecessarily prolix.
It is argued that the indictment is fatally defective for want of a direct charge that the conspirators knew the representations which they agreed to make were then false or would be false when subsequently repeated in the commission of overt acts. A careful prosecuting attorney skilled in drawing indictments would not ordinarily omit this charge, but the omission does not seem to be a fatal defect in the present instance. Whoever drew the indictment attempted to follow an old form which should be abandoned as a legal abomination. Instead of charging in simple and direct language the facts constituting each element of the conspiracy and the overt acts to effect the object thereof, the indictment contains unnecessary details and bewildering repetitions borrowed from an ancient form not suited to present conditions. ...
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