Carroll v. State

CourtSupreme Court of Nebraska
Citation73 N.W. 939,53 Neb. 431
Decision Date19 January 1898

53 Neb. 431
73 N.W. 939


Supreme Court of Nebraska.

Jan. 19, 1898.

Syllabus by the Court.

1. The provisions of section 664 of the Code of Civil Procedure in regard to summoning jurors, “whenever at any general or special term or at any period of a term for any cause there is no panel of * * * petit jurors,” are broad enough to cover and include any and all possible reasons for which at any term of a court there may be no panel of jurors present for the trial of causes.

2. The provisions of the section to which reference has just been made are applicable in relation to jurors for trials of criminal causes. Cr. Code, § 466.

3. During the pendency of a term of district court for which no panel of jurors had been provided for service by the proper officers, a crime was committed, and an information filed by the county attorney charging parties with the commission of the crime, and the accused were brought before the court for trial. Held to be a condition of affairs within the import of section 664 of the Code of Civil Procedure, and the action of the trial court in ordering jurors summoned as prescribed in said section was proper.

4. The names “Mrs. Fred Steinburg” and “Mrs. Fred Steenburg,” the first indorsed on an information as the name of a witness, and the second appearing in testimony as her name, are idem sonans.

5. It is allowable, though probably not the best practice, to indorse the name of a married woman on an information as a prospective witness in a criminal case by the use of her husband's surname, and prefix thereto the appellative abbreviation “Mrs.” and the Christian name or names of her husband, or the initial letter or letters thereof.

6. The law does not recognize other than the one or first Christian name; but where a person, as a matter of fact, has a second or middle Christian name, and is commonly known or identified by the use of such middle Christian designation, if his wife's purposed use as a witness in a criminal cause is evidenced by an indorsement of her husband's surname and the abbreviation “Mrs.,” together with the middle Christian appellation of the husband, it is sufficient, where it does not appear or there is no complaint that the accused person was misled thereby, or lacked information of what person was to be produced as a witness.

7. The main purpose of the requirement that the names of witnesses be indorsed on the information in a criminal action is to convey to the accused information or knowledge of the identity of witnesses to be produced on behalf of the state at the trial.

8. The admission of immaterial testimony is not sufficient ground for the reversal of a judgment, where not prejudicial to the rights of the complaining party.

9. A portion of an instruction, worded as follows: “You are not at liberty to disbelieve as jurors if you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered,”-- held not objectionable and erroneous when read and construed with the further portions of the same instruction and the other paragraphs of the charge, in that the first sentence did not read, “You are not at liberty to disbelieve as jurors if from the evidence you believe as men,” instead of as it did, with the omission of the reference to the evidence.

10. The statute defining burglary states, among other things, “If any person shall * * * willfully, maliciously, and forcibly break and enter * * *.” If, in an instruction in which it is purposed to embody a statement of the elements which constitute the crime, and necessary to be proved, the word “maliciously,” in reference to the breaking and entering is omitted, it is sufficient if other words or another word, identical in meaning or expressing the same meaning, be used.

11. It is not error to refuse to give instructions if their substance is embodied and given in the charge to the jury.

12. The action of the trial court in refusing to give certain requested instructions examined and approved.

13. The evidence held sufficient to sustain the verdict.

Error to district court, York county; Sedgwick, Judge.

James Carroll and another were convicted of burglary and larceny, and bring error. Affirmed.

[73 N.W. 939]

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

C. J. Smyth, Atty. Gen., and Ed P. Smith, Dep. Atty. Gen., for the State.


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 night-time of the 22d day of May, 1897. The term of court during the continuance of which they were tried had its commencement on the 19th day of April, 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 24. 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 proceeding 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

[73 N.W. 940]

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 empaneled according to the provisions of the laws in force relating to the summoning and empaneling 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 jurors 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...

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