Bush v. State
| Decision Date | 19 June 1901 |
| Citation | 62 Neb. 128,86 N.W. 1062 |
| Parties | BUSH v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. An information charging murder may be verified by the prosecuting attorney of the proper county.
2. The terms “prosecuting attorney” and “county attorney” are used interchangeably in our statutes, and are synonymous.
3. It is proper for the county attorney, under the direction of the district court, to procure an attorney to assist him in the trial of a person charged with a felony, and such assistant is not required to qualify and give a bond as deputy county attorney.
4. The state is required to furnish a defendant, informed against for a felony, with one copy, and no more, of the information filed against him, within 24 hours after such filing.
5. Held, that the record discloses that the jury were in the custody of the sheriff during the entire progress of the trial.
6. The alleged misconduct of a juror, to be available on review, must be presented by the record and assigned for error in the motion for a new trial.
7. Assignments of error complaining of the giving of groups of instructions are too indefinite and uncertain to be considered, unless all included in such groups are bad.
8. Evidence examined, and held sufficient to sustain a conviction of murder in the first degree.
Error to district court, Dundy county; Norris, Judge.
Ernest Bush was convicted of murder, and he brings error. Affirmed.James S. West and Burr & Spencer, for plaintiff in error.
F. N. Prout, Atty. Gen., Norris Brown, Dep. Atty. Gen., B. F. Eberhart, and W. S. Morlan, for the State.
In the district court of Dundy county Ernest Bush was informed against and found guilty of the murder of one Silas Bailey, and from the judgment of conviction he brings the record here for review.
There is complaint concerning the form and manner in which the information is verified. In the body of the information it is recited that “B. F. Eberhart, county attorney in and for Dundy county” informs against the defendant for the crime charged. The name of B. F. Eberhart is subscribed thereto. It is verified as follows, omitting the formal portions: “I, B. F. Eberhart, do solemnly swear that I am prosecuting attorney in and for said county, and that the allegations and charges in the foregoing information are true, as I verily believe.” The same is signed by Eberhart, and the jurat of the clerk follows. It is claimed that it is defective, in that it purports to be verified, not by the “county attorney,” but by the “prosecuting attorney.” Without inquiring whether defendant has so made the record as to entitle him to raise this question, it is sufficient to say that it is evident that the terms “prosecuting attorney” and “county attorney,” as employed by our legislature, are synonymous, and may be used interchangeably. The section of the statute which authorizes the election of such an officer designates him as county attorney. The section of the Code of Criminal Procedure which requires the verification of informations names him as “prosecuting attorney,” and he is alluded to in other sections and statutes by one or the other of those names, indicating plainly that the legislature employs the two terms with the same sense and meaning. Section 579 of the Criminal Code was followed literally by the prosecuting officer, and we have no doubt of the propriety of such action. Dinsmore v. State (Neb.) 85 N. W. 445.
The court, during the proceedings, made the following record: “On the 28th day of November, 1899, on application of said B. F. Eberhart, county attorney, for the appointment of an attorney to assist in the prosecution, and it appearing to the court that it was necessary for the county attorney to have assistance in the prosecution of the matter, W. S. Morlan, attorney at law, is hereby appointed to assist the county attorney in the prosecution of this action.” No exception was taken to this order of the court at the time; but complaint is made for the first time in this court that the proceeding was erroneous, because Morlan took no oath and filed no bond as deputy county attorney while acting as such assistant. It is quite evident from the record that Mr. Morlan was not acting as deputy attorney, but his appointment as assistant was pursuant to that portion of section 20, c. 7, Comp. St., which provides that the county attorney of any county may, under the direction of the district court, procure such assistance in the trial of any person charged with the crime of felony as he may deem necessary therefor. Mr. Morlan, therefore, did right in not qualifying or giving bond as deputy county attorney, because he was not appointed to act in that capacity.
Counsel for defendant asked an order of the court directing the clerk to furnish them with a copy of the information, which order was refused, and such refusal is assigned as error. The record discloses that prior to the filing of this motion the sheriff had duly served a true and certified copy of the information upon the defendant personally. We know of no law requiring the state to furnish a defendant or his counsel more than one copy of the same information or indictment, and none is pointed out by counsel. Cr. Code, § 436.
It is next complained that the record does not affirmatively show that the jury was during the whole of the trial in the custody of the...
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