Clair v. State

CourtSupreme Court of Nebraska
Writing for the CourtPOST
Citation40 Neb. 534,59 N.W. 118
Decision Date15 May 1894
PartiesCLAIR v. STATE.

40 Neb. 534
59 N.W. 118

CLAIR
v.
STATE.

Supreme Court of Nebraska.

May 15, 1894.



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: “There comes up from the people a command for a forward march all along the line of your duty. You should give heed to that cry, for it comes from a patient and long-suffering endurance which has at last reached its limit.” 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.

[59 N.W. 118]

Chas. Offutt, W. D. McHugh, and Lee S. Estelle, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.


POST, J.

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: “Motion to Quash Indictment. Comes now the defendant in the above-entitled cause, and moves the court to quash the indictment herein for the following reasons, to wit: First. That the charge heretofore given to the grand jury who found the indictment herein, by the Honorable C. R. Scott, Judge, was inflammatory and prejudicial, in that said charge aroused the prejudice of said grand jury so that they were not fair and impartial grand jurors. Said charge is filed in the office of the clerk of this court, and is herein referred to and made a part of this motion. Second. That the said indictment does not charge any offense under the laws of the state of Nebraska. Third. That said indictment is insufficient in law, and is not specific enough, in that it fails to point out what said claim and bill of said C. E. Squires it was that was before the city council at the time of the alleged commission of said crime. W. J. Clair, Silas Cobb, Attorneys for Defendant.”

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

[59 N.W. 119]

holding the same in his hand], to which question 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: ‘I will state for myself that the motion was not filed under any provision of the statute that I know of. I never looked to see whether there was a provision of that kind, but I proposed to fix myself in such a position by the filing of that motion that, if it were necessary in taking this case to the supreme court, I could raise the question as to whether or not the charge of the grand jury, given at the beginning of this term by your honor, was one which is contemplated by the law of this state. I simply did it as an attorney. I did not do it for the purpose of casting any reflection one way or the other.’ Mr. Cobb said: ‘I was a party to the filing of the motion. I filed it myself. Mr. Clair and myself prepared it in my office. I did it in good faith. I did it with no disregard for the court who gave the instructions to the grand jury heretofore. I did it after consultation, and in fact upon the suggestion of one of the oldest criminal practitioners at this bar. In fact, to show that I had no ill faith in the matter, I did it thinking it was simply doing my duty to my client, and at the suggestion of this attorney who has practiced at the bar. I do not desire to give his name.’ Judge Scott: ‘Do you refuse to disclose his name?’ Mr. Cobb: ‘Yes; because I do not think it is necessary. An attorney who has practiced at this bar...

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8 practice notes
  • Price v. State, 27434
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Febrero 1929
    ...them might be presented to the political departments, but emphatically not to any department which is judicial. As said in Clair v. State, 40 Neb. 534, 59 N.W. 118, 28 L. R. A. 375: "Public sentiment in a representative government controls in the solution of political questions, but we reco......
  • State v. Lawler
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 Abril 1936
    ...the indictments returned. Stewart v. State (1865) 24 Ind. 142;Fuller v. State (1905) 85 Miss. 199, 37 So. 749;Clair v. State (1894) 40 Neb. 534, 59 N.W. 118, 28 L.R.A. 367. In Commonwealth v. Sanborn (1874) 116 Mass. 61, the court said: “The provisions of the Rev.St. [citations omitted], bi......
  • People v. Sherwin, No. 18040.
    • United States
    • Supreme Court of Illinois
    • 5 Junio 1929
    ...Nev. 110, 85 P. 352,5 L.R.A. (N. S.) 916, 124 Am. St. Rep. 915;In re Woolley, 11 Bush, 95;5 L. R. A. (N. S.) 916, note. In Clair v. State, 40 Neb. 534, 59 N. W. 118,28 L. R. A. 367, cited by plaintiff in error, a motion to quash an indictment was filed in which it was stated that the grand ......
  • Grand Island Sav. & Loan Ass'n v. Moore
    • United States
    • Supreme Court of Nebraska
    • 15 Mayo 1894
    ...at different dates, but a trust deed securing them provided that, if the maker should fail to pay the debt or interest when the same [59 N.W. 118]became due, then both should become due and payable, that an indorser of the second note was discharged by failure to make demand, and give notic......
  • Request a trial to view additional results
8 cases
  • Price v. State, 27434
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Febrero 1929
    ...them might be presented to the political departments, but emphatically not to any department which is judicial. As said in Clair v. State, 40 Neb. 534, 59 N.W. 118, 28 L. R. A. 375: "Public sentiment in a representative government controls in the solution of political questions, but we reco......
  • State v. Lawler
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 Abril 1936
    ...the indictments returned. Stewart v. State (1865) 24 Ind. 142;Fuller v. State (1905) 85 Miss. 199, 37 So. 749;Clair v. State (1894) 40 Neb. 534, 59 N.W. 118, 28 L.R.A. 367. In Commonwealth v. Sanborn (1874) 116 Mass. 61, the court said: “The provisions of the Rev.St. [citations omitted], bi......
  • People v. Sherwin, No. 18040.
    • United States
    • Supreme Court of Illinois
    • 5 Junio 1929
    ...Nev. 110, 85 P. 352,5 L.R.A. (N. S.) 916, 124 Am. St. Rep. 915;In re Woolley, 11 Bush, 95;5 L. R. A. (N. S.) 916, note. In Clair v. State, 40 Neb. 534, 59 N. W. 118,28 L. R. A. 367, cited by plaintiff in error, a motion to quash an indictment was filed in which it was stated that the grand ......
  • Grand Island Sav. & Loan Ass'n v. Moore
    • United States
    • Supreme Court of Nebraska
    • 15 Mayo 1894
    ...at different dates, but a trust deed securing them provided that, if the maker should fail to pay the debt or interest when the same [59 N.W. 118]became due, then both should become due and payable, that an indorser of the second note was discharged by failure to make demand, and give notic......
  • Request a trial to view additional results

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