Burrell v. State

• Decision Date: 11 January 1889
• Parties: BURRELL v. STATE.
• Court: Nebraska Supreme Court

25 Neb. 581

41 N.W. 399

BURRELL

v.STATE.

Supreme Court of Nebraska.

Jan. 11, 1889.

Syllabus by the Court.

1. In the cases of misdemeanors, several distinct offenses of the same kind may be joined in the same indictment. See State v. Gummer, 22 Wis. 441.

2. In such cases a separate sentence should be passed on each count of the indictment upon which the defendant is found guilty by the verdict of the jury.

3. In such case the granting or refusal of an application for continuance is largely within the discretion of the trial court. To enable a court of review to find reversible error in the refusal of such application, it must be snown that there was an abuse of such discretion.

Error from district court, Frontier county; COCHRAN, Judge.Rittenhouse & Starr, for plaintiff in error.

The Attorney General, for the State.

COBB, J.

This cause came to this court from the district court of Frontier county on error. The defendant was indicted for violating the statute regulating the sale of malt, spirituous, and vinous liquors. The indictment charged him with 17 distinct violations of the law, by selling spirituous liquors without first having obtained license therefor,--one by selling such liquors on Sunday, and one by selling liquors to a minor, in as many separate counts. The first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and seventeenth counts charged sale without license; the second, a sale on Sunday; and the sixteenth, a sale to a minor. The seventhcount charged a sale to a minor without license. There was a plea of not guilty, and upon the trial the jury brought in a verdict of guilty as charged in the first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth counts of the indictment. A motion in arrest of judgment, as well as a motion for a new trial, having been overruled, the court sentenced the defendant to pay a fine of $1,525, and the costs of prosecution, and that he stand committed until such fine and costs be paid.

The defendant assigns the following errors: (1) In not sustaining the motion of the defendant to require the prosecution to elect upon which charge or count in the indictment the state would rely for conviction; (2) in not granting a continuance of the action, as applied for by the defendant; (3) in refusing to allow the defendant to withdraw his former plea of not guilty, in order to file a plea in abatement; (4) in allowing the sheriff to recall the same jurors into the box after, and in the same order, and from the same memorandum, as before the challenge to the array had been sustained by the court; (5) in allowing any evidence to be taken under and in support of the indictment herein, over the general objection of the defendant; (6) in sustaining the motion of the defendant to strike all evidence given by Luther Sellers in support of the sixth count of the indictment from the record; (7) in not giving instruction No. 4, asked for by the defendant; (8) in allowing the prosecuting attorney to hold the instructions that the court was to give in his hands, and read them an article at a time, and comment on them to the jury, while making the closing argument to the jury; (9) that the verdict of the jury herein returned is not supported by the evidence; (10) that the court erred in not sustaining the motion in arrest of judgment; (11) the court erred in rendering judgment for $1,525; (12) the court erred in rendering judgment and sentence in this case in excess of the maximum penalty for one offense, to-wit, $500; (13) the court erred in imposing an excessive punishment in this case, not warranted by the testimony and nature of the offense charged; (14) the court erred in overruling the motion for a new trial herein; (15) the court erred in rendering any judgment or pronouncing sentence in this case, for the reason that the indictment does not charge any offense under the laws of the state of Nebraska.

Before the commencement of the trial the defendant presented his motion that the court require the prosecution to elect as to which count of the indictment he will prosecute upon, for the reason that there are more than one separate and distinct offense therein charged, which motion was overruled. Upon the overruling of the above motion, and the first assignment of error, plaintiff in error raises the first point in the brief, which is that, although there were 17 distinct offenses charged in as many counts in the indictment, yet in point of law each of the several counts must be held to refer to the one offense, each describing it in a different manner; or, in the language of the New York court of appeals in the case of People v. Liscomb, 60 N. Y. 559: “Where, upon the trial of an indictment containing several counts charging separate and distinct misdemeanors, identical in character, a general verdict of guilty is rendered, or a verdict of guilty upon two or more specified counts, the court has no power to impose a sentence, or cumulative sentences, exceeding in the aggregate what is prescribed by statute as the maximum punishment for one offense of the character charged.” This construction of the law, as contended for by counsel for plaintiff in error, is entitled to very respectful and serious consideration for its inherent merit; and we have seen that it has met the approval of, if it did not emanate from, one of the ablest courts. But the weight of authority is against it, and it appears to be generally accepted law that where an indictment or information contains two or more counts for offenses below the grade of felony, each charging a separate and distinct offense of the same character, such as selling intoxicating liquors without license, each count charging a sale at a different time, or to a different purchaser, and upon the defendant being found guilty on two or more specified counts, he may be sentenced and punished on each of such counts upon which he is found guilty by the jury. See Eldredge v. State, 37 Ohio St. 191;State v. Gummer, 22 Wis. 441; and State v. Skinner, (Kan.) 8 Pac. Rep. 420,--all cited by the attorney general.

As we have seen in the statement of the case, the defendant was charged in one of the counts with selling intoxicating liquor to a minor, and in one with selling on Sunday; so that the offenses charged in the several counts of the indictment are not identical, one with another. But as the attention of the trial court was not called to this point in the motion for a new trial it will not be considered here, further than to say that, as it appears that the defendant was without license to sell, his sale to a minor, as well as a sale by him on Sunday, each constituted a compound offense, for which he could have been prosecuted under either of the two sections of the statute applicable thereto; and as it required less evidence to convict for selling without license, and the punishment provided by statute is greater for that offense than for selling to a minor, or for selling on Sunday, if there was an irregularity in the apparent misjoinder, it worked no hardship to the defendant. In the motion for a new trial the defendant complains of the refusal by the court of his application for leave to withdraw his plea of not guilty, in order to file a plea in abatement, and this point is insisted upon in the brief of counsel. But a careful examination of the record fails to disclose that such an application was made to the court, or any ruling of the court thereon. Before the trial the defendant applied for a continuance of the cause to the next term of the district court, on account of the absence of material witnesses, which application was sustained by a lengthy affidavit, and the denial of which by the court is assigned for error. From a careful examination of the affidavits in support of said application, it appears that, had all the witnesses therein named been present, and testified as the affiant states they would testify, their evidence would tend to disprove some of the charges in the indictment, yet it would leave most of them unaffected. It is therefore impossible for a reviewing court to say that there was an abuse of discretion on the part of the trial court in denying the application for a continuance.

The defendant challenged the array of petit jurors for irregularity in the mode of their selection, and this unequal distribution to the several precincts of the county; which challenge was allowed by the court. Whereupon the court ordered the sheriff to forthwith call and summon from the body of the county good and lawful men, etc. The defendant in the motion for a new trial assigns as the fourth ground of error the “allowing the sheriff to recall the same jurors into the box, after, and in the same order, and from the same memorandum, as before a challenge to the array had been sustained by the court,” and the point is insisted on by counsel in the brief. It does not appear from the bill of exceptions or otherwise that the attention of the court was called to the matter here complained of, or any ruling made thereon, before the selection of the jury and trial, nor does it appear that any juryman was objected to or challenged, either for cause or peremptorily, by the defendant. Therefore, without expressing any opinion upon the point as made by defendant in the brief, it must be overruled here, for the reason that it is not presented in the case, as made in the trial court.

The next point arises upon the refusal of the court to strike out the testimony of Luther Sellers, a witness on the part of the state. This testimony, taken by itself, would amount to but little or nothing, but when taken in connection with that of Richard Fisher, a witness on the part of the state, it quite clearly establishes the charge of selling intoxicating liquor. The substance of Seller's...