Coil v. State

• Decision Date: 05 June 1901
• Docket Number: 11,367
• Citation: 86 N.W. 925,62 Neb. 15
• Parties: GEORGE COIL v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

86 N.W. 925

62 Neb. 15

GEORGE COIL v. STATE OF NEBRASKA

No. 11,367

Supreme Court of Nebraska

June 5, 1901

ERROR from the district court for Dawes county. Tried below before WESTOVER, J. Affirmed.

AFFIRMED.

Allen G. Fisher, George A. Eckles and Albert W. Crites, for plaintiff in error.

Frank N. Prout, Attorney General, Norris Brown, Deputy, and Michael F. Harrington, contra.

OPINION

HOLCOMB, J.

The plaintiff in error was informed against in the district court of Dawes county on the charge of murder in the first degree. A trial to the court and jury on the issue raised by a plea of not guilty resulted in a verdict of guilty of murder in the second degree, with a recommendation of leniency in the infliction of punishment by the court. A sentence of imprisonment in the penitentiary for the period of ten years was imposed the minimum permitted by law. From the verdict and judgment the defendant prosecutes proceeding in error in this court to secure a reversal thereof. A number of alleged errors in the trial of the case are assigned which, in so far as they are deemed essential in reviewing the case, will be noted in the order of presentation.

We have carefully noted each and every error assigned and argued in the brief of counsel for defendant, and a failure to note each in detail is because they are so numerous; an opinion would be extended to an unwarranted length in the discussion of many which are not regarded as of sufficient importance to justify more than a passing notice.

By a motion to quash, plea in abatement, and demurrer, the question is presented of the right of the state to proceed against the defendant upon an information, charging the crime of which he was tried, made and filed by the county attorney instead of presentment under an indictment by a grand jury duly returned in the manner provided by law. This question has so recently been considered and passed upon by this court in the case of Dinsmore v. State, 61 Neb. 418, 85 N.W. 445, that it is not thought necessary now to more than refer to that case for an exposition of our views on the subject, and the reason for holding against the contention of defendant's counsel regarding the matter in the case at bar. There are no valid objections, by reason of any of the provisions of the constitution, to the prosecution of one charged with a capital offense, upon an information by the county attorney, under the provisions of chapter 54 (secs. 578-585) of the Criminal Code.

It is next urged that it is not shown by the record that the jury called to try the case was kept in charge of an officer during the trial. An examination of the record discloses that upon the first adjournment, after the impaneling of the jury began, they were placed in charge of a sworn bailiff, and thereafter, during the entire proceedings, until the verdict of the jury was returned and they discharged, they were, while not in open session of the court, in the charge of an officer of the court. There is nothing in the record to warrant the inference that the jury were allowed to separate at any time during the progress of the trial, no indication that the defendant has in this respect been in anywise prejudiced, no complaint made during the trial, nor in the motion for a new trial, and the objection is now unavailing and without merit. St. Louis v. State, 8 Neb. 405, 1 N.W. 371; Polin v. State, 14 Neb. 540, 16 N.W. 898.

It is further contended that error was committed by the court in overruling a challenge for cause interposed by the defendant to a juror named Hilbert, called to sit in the case. From the purported record before us it is made to appear that the said juror was called into the jury-box, examined by counsel for both the state and the defendant, and by each was passed for cause. Thereafter, and when some of the peremptory challenges allowed each of the parties had been exercised by the state and by the defendant, leave was asked by the defendant's counsel, and granted by the court, to further examine this juror for cause. It was thereupon by such examination disclosed that the said Hilbert had been summoned and had served as a juror in the district court of that county within two years next preceding the time he was summoned to sit in the case at bar. The defendant challenged the juror for cause. The state resisted the challenge "for the reason that the juror was passed for cause, and since he was passed the state has been required to exercise two of its peremptories." The court overruled the challenge, to which ruling defendant duly excepted, and assigned the ruling as one of his grounds for a new trial. The ruling, it is argued, is error with prejudice to the defendant. Whether the court erred in overruling the challenge is dependent on the question of the defendant having waived or lost the right to challenge the juror for cause when he was examined on his voir-dire examination and passed without objection being raised as to his qualification to sit in the trial of the cause. The right of a defendant to challenge a juror in either a civil or criminal cause, on the ground that he has been summoned and served as such in the same court within the two preceding years, must be conceded without discussion. The right is given by statute, has been confirmed by the decisions of this court and is held to extend to those who have been called to serve as talesman as well as those summoned on the regular panel. Code of Civil Procedure, sec. 665; Criminal Code, sec. 468; Northeastern N. R. Co. v. Frazier, 25 Neb. 42, 48, 40 N.W. 604; Wiseman v. Bruns, 36 Neb. 467, 468, 54 N.W. 858. A defendant may waive his right to interpose challenge on the ground stated, and will be held to have absolutely waived the right unless the objection is presented before the jury is sworn. This is made so by statute. Whether he will be deemed to have waived the right or allowed to interpose a challenge after he has examined and passed a juror for cause must, we think, rest upon the circumstances of each particular case and to a degree rests unquestionably in the sound discretion of the trial court. The proceedings being under the control and direction of the court, an orderly presentation of all matters for consideration and action requires that the successive steps be taken one after the other in regular order until the cause is finally disposed of, and that when one stage of the case has been passed it be not gone over again, except for sufficient reason. If a challenge for cause is not presented in apt time, or if a party has been lacking in diligence in discovering the causes for challenge, it would seem very proper to hold him to have lost the right when subsequent to the proper time a challenge is sought to be interposed. It is quite probable also that the nature of the objection to the juror may have some bearing in determining the property of a ruling disallowing it. If a juror is manifestly unfair, or is disqualified for reasons which would ordinarily influence his conduct as a juror to the prejudice of one of the parties, by all means the utmost latitude consistent with regularity of proceedings should be given to a challenge for cause, in order that a fair and impartial jury may be secured. Where the ground of objection is more technical than substantial, the reason for relaxing the method of procedure is not so cogent. Ordinarily it is said "the ruling of a trial court in deciding a challenge for cause will not be disturbed, unless an abuse of discretion is shown."

Whether the facts and circumstances in the case at bar render the overruling of the challenge proper or the reverse, must be answered by an examination of the record to ascertain whether sufficient cause existed or is shown for the interposition of the challenge after the juror had been passed and the parties were engaged in the exercise of their right to challenge peremptorily the number allowed by statute of those called to sit in the case. The error alleged will not be presumed. Before the defendant can rightfully claim a reversal on the ground advanced, it is incumbent upon him to present a record from which it appears affirmatively that the court erred and abused its discretion in regard to the ruling complained of. This is an elementary rule of practice in the review of proceedings, both civil and criminal in their nature. As presented in the record before us, we are wholly unable to ascertain therefrom the reason why the defendant's counsel did not interpose the challenge at the time the opportunity arose and the examination of the juror as to his qualifications was engaged in. Whether he had knowledge of a cause existing for a challenge or made any reasonable effort to inform himself or omitted to inquire regarding the matter through caprice or for some unknown purpose does not appear. Nor did he offer any explanation or advance any reason why the challenge was not sooner and in more appropriate time interposed. In the absence of any showing of diligence or explanation of a reason for not making the objection in apt time and before passing the juror for cause, and in view of the presumption of the correctness of the ruling of the trial court, the question, perhaps, should be disposed of on the proposition that error and abuse of discretion is not made to appear affirmatively by the record before us. We do not, however, directly decide the point, because the defendant has failed to present us a properly authenticated record which can avail him as a bill of exceptions containing the evidence and the rulings of the court relating to the impaneling of the jury and their voir-dire examination, by which their qualifications to try the issue may be determined.

In Durfee v. State, 53 Neb. 214, 73 N.W. 676, it is held in...