Clair v. State
Decision Date | 15 May 1894 |
Citation | 40 Neb. 534,59 N.W. 118 |
Parties | CLAIR v. STATE. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A wide discretion is allowed to the presiding judge in directing the attention of the grand jury to particular subjects of inquiry, or to particular offenses or classes of offenses, and that discretion appellate courts will not assume to control.
2. But where a party indicted, in the honest belief that he has been prejudiced by an abuse of discretion by the judge in his charge to the grand jury, in respectful language alleges the action of the judge as error, in order to secure a ruling thereon, he is not guilty of contempt of court.
3. So held, although he mistakes his remedy by assailing the charge of the judge by motion instead of by plea.
4. The existence of facts which will warrant the finding of an indictment is a question for the grand jury, and should not, as a rule, be assumed by the judge.
5. A charge to the grand jury which, after assuming that the crime of bribery had been committed, and that it was the duty of the jurors to indict therefor, concluded as follows: Held, that the term “inflammatory,” as applied to said charge, is a merited criticism.
Error to district court, Douglas county; C. R. Scott, Judge.
W. J. Clair was adjudged guilty of contempt, and brings error. Reversed.Chas. Offutt, W. D. McHugh, and Lee S. Estelle, for plaintiff in error.
Geo. H. Hastings, Atty. Gen., for the State.
This is a petition in error, and brings before us for review the judgment of the district court of Douglas county, whereby the plaintiff in error was adjudged guilty of contempt of court, and sentenced to pay a fine of $25, and, in default thereof, to be committed to the county jail. The alleged contempt consists in the filing, as attorney for the defendant in the case of State of Nebraska v. Edward F. Morearty, then pending in said court, of a motion in the following language:
For a perfect understanding of the essential facts in the case it is proper to state that there are, for the fourth judicial district, seven judges, six of whom are assigned to Douglas county, and usually engaged in the disposition of causes on separate dockets. Judge Scott, who presided over the criminal division of the court at the opening of the February, 1892, term, gave to the grand jury the charge mentioned in the motion above set out, and to which an extended reference will hereafter be made, but to Judge Davis was assigned the trial of criminal causes for the term. On the 19th day of March following, while Judge Davis was engaged in the trial of Morearty on the charge of bribery upon an indictment found by the grand jury previously charged by Judge Scott, the following proceedings were had, quoting from the bill of exceptions: “Be it remembered that on March 19, 1892, that in the criminal court room No. 1 of the court aforesaid, Judge Davis presiding, on the trial of The State of Nebraska v. Edward F. Morearty, at about 11:45 a. m. the said jury in said cause were dismissed until the afternoon hour of adjournment, to wit, 2 o'clock p. m., by his honor, Judge Davis; and just about that time, and shortly before the said jury were dismissed, his honor, Judge Scott, took the bench in connection with Judge Davis, and, after the retirement of said jury, his honor, Judge Scott, called Attorneys W. J. Clair and Silas Cobb, the same who are defendants herein, and, calling their attention to a motion which has been filed by the said attorneys to quash the indictment against said Edward F. Morearty, and which said motion is in words as follows [referring to the motion copied above]; and thereupon the said Judge Scott asked said attorneys if this was their motion[, to which question the same in his hand]they both answered that it was, and that their names were signed to it, whereupon said Judge Scott asked them if they were willing to strike out the first count of said motion as above, and they were asked if they knew of any statute authorizing the filing of such a motion, whereupon Mr. Clair said: Mr. Cobb said: Judge Scott: ‘Do you refuse to disclose his name?’ Mr. Cobb: Judge Scott: ‘Do you know of any provision of the statute that makes that a ground to quash?’ Mr. Cobb: Judge Scott: Mr. Cobb: ‘I do not know that we do.’ Judge Scott: Mr. Clair: ‘I would like to take time to consider it.’ Judge Scott: ...
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