Carrall v. State

• Decision Date: 19 January 1898
• Docket Number: 9574
• Citation: 73 N.W. 939,53 Neb. 431
• Parties: JAMES CARRALL ET AL. v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

73 N.W. 939

53 Neb. 431

JAMES CARRALL ET AL. v. STATE OF NEBRASKA

No. 9574

Supreme Court of Nebraska

January 19, 1898

ERROR to the district court for York county. Tried below before SEDGWICK, J. Affirmed.

AFFIRMED.

M. S Gray and F. C. Power, for plaintiffs in error.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.

OPINION

HARRISON, C. J.

In an information filed in the district court of York county the plaintiffs in error were charged with the commission of the crimes of burglary and larceny, and on trial were convicted and sentenced to terms of imprisonment in the penitentiary. To obtain a reversal of the judgment, error proceedings have been prosecuted to this court in their behalf.

The crime of which the plaintiffs in error were convicted was alleged to have been committed in the nighttime of the 22d day of May, 1897. The term of court during the continuance of which they were tried had its commencement on April 19, 1897. The information against these parties was filed June 28 1897. No regular panel of jurors had been drawn or summoned for service during the term of court. The time of the term was apparently, probably according to prior expectation or arrangement, being devoted to the disposition of causes in which the services of jurors were not required. When the information was presented in this cause of the commission of the crime subsequent to the time the court convened it became necessary, if the accused were to be tried during the existing term of court, that a jury be provided for the trial. To meet this exigency the court by order directed the sheriff to summon jurors, the number being fixed at twenty-four. The sheriff complied with the order and the attendance of the required jurors was procured. To a trial by this special panel the accused interposed objections, which were overruled, and they were placed on trial before a jury selected from the jurors summoned in the manner we have indicated.

As one of the assigned errors it is urged that the jurors were not procured for service in a method provided by law; that this branch of the proceedings of the trial of the accused was without warrant of law, was irregular; hence the judgment should be reversed. It is not claimed that the jury was unfair, or that any degree of prejudice resulted to the rights of the parties through the selection of the jurors in the way stated; but whether that there is no such complaint might be to any extent governing in the question we need not in this cause and do not determine. It may be solved on another ground. In section 466 of our Criminal Code it is provided: "In all [criminal] cases, except as may be otherwise expressly provided, the jury summoned and impaneled according to the provisions of the laws in force relating to the summoning and impaneling of juries in other cases shall try the accused." And in section 664 of the Code of Civil Procedure: "Whenever the proper officers fail to summon a grand or petit jury, or when all the persons summoned as grand or petit jurors do not appear before the district courts, or whenever at any general or special term or at any period of a term for any cause there is no panel of grand or petit jurors, or the panel is not complete, said court may order the sheriff, deputy sheriff, or coroner to summon without delay good and lawful men, having the qualifications of jurors, and each person summoned shall forthwith appear before the court, and if competent, shall serve on the grand jury or petit jury as the case may be, unless such person may be excused from serving or lawfully challenged." The provisions of this section are broad enough to cover and include any and all possible reasons for which at any term of court there may be no panel of jurors present for the trial of causes, and the contingencies of the present case are entirely within its scope. The term was convened and progressed without a panel of jurors, the acts which constituted the alleged crime were committed and the information of them presented to the court after the commencement of its term, and the cause brought before the court was one the disposition of which demanded a jury. There being none, the court could exercise the power granted it by the section we have quoted. (People v. Coughlin, 67 Mich. 466, 35 N.W. 72; Bennett v. Tintic Iron Co., 9 Utah 291, 34 P. 61; Smith v. Bates, 28 S.W. 64; Western Union Telegraph Co. v. Everheart, 10 Tex. Civ. App. 468, 32 S.W. 90; St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936; Smith v. State, 21 Tex. Ct. App. 277, 17 S.W. 471; Ohio & M. R. Co. v. Trapp, 4 Ind.App. 69, 30 N.E. 812; State v. Page, 12 Neb. 386.) The argument that this construction of this section of the statute clothes the district courts with great or too much power might have force or effect if addressed to the legislature, the lawmakers; but where the language is as direct and unambiguous in its import as is employed in this section, courts may not construe it and give it a different meaning to avoid a possible difficulty, or abuse of its grant or power. Moreover, it is not to be presumed that the district courts, or the judges thereof, will abuse any of the powers conferred on them, but rather that they will use them as intended by the legislators.

It is of the assignments that the trial court erred in allowing one of the witnesses called for the state to testify, for the reason that her name was not indorsed on the information. The name of this witness, as it appeared on the back of the information, was as follows; "Mrs. Fred Steinburg." The court reporter has given it in his notes "Mrs. Fred Steenburg." Whether this is a mistake in the spelling of the name by the county attorney in the indorsement on the information or of the reporter we cannot say. It is not disclosed by the record. But, however this may be, we think the two words may be fairly said to be idem sonans. (See 16 Am. & Eng. Ency. Law 112, and note.) As an exposition of the doctrine of idem sonans in regard to names in a warrant we will quote from the decision in the case of People v. Gosch, 82 Mich. 22, 46 N.W 101, as follows: "It is also claimed that the warrant was void for the reason that it did not properly name the respondents. In the warrant the first name of Gosch was spelled 'Amel' instead of 'Amiel,' and the name of 'Brearly' was spelled therein 'Brailey.' This claim is scarcely worthy of notice. The names are idem sonans." The name of this witness, as appears from the record, is "Alena Mary Steenburg," and her husband's name "Paul Fred Steenburg." The statute requires the "names of witnesses" to be indorsed on the information. (Criminal Code, sec. 579.) It is argued that "Mrs. Fred Steinburg" was not the name of the witness, and this being the name written on the instrument was insufficient,--did not fulfill the requirements of the law. It must be said that in a strict sense or meaning this was not the name of the witness. A married woman takes her husband's surname, and by a social custom which so largely prevails that it may be called a general one she is designated by the use of the Christian name or names, if he has more than one, of the husband, or the initial letter or letters of such Christian name or names of the husband, together with the appellative abbreviation "Mrs." prefixed to the surname, and all married women, there may be possibly a few exceptions, are better known by such name than their own Christian name or names used with their husband's surname, and their identification would be more perfect and complete by the use of the former method than the latter. That knowledge of the identity of...