Cooney v. State
| Decision Date | 20 February 1901 |
| Docket Number | 11,689 |
| Parties | PATRICK E. COONEY v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR from the district court for Dawson county. Tried below before SULLIVAN, J. Reversed.
REVERSED AND REMANDED.
Hector M. Sinclair, for plaintiff in error.
Frank N. Prout, Attorney General, and Norris Brown, Deputy, contra.
This was a prosecution under section 20, chapter 50, Compiled Statutes, 1899. The defendant, Patrick E. Cooney, was found guilty of keeping intoxicating liquors for the purpose of sale without a license, and was sentenced to pay a fine of $ 300. Complaint is made of an instruction which, in substance informed the jury that if one of the witnesses for the state, a man named Pierson, was a member of an incorporated detective association, he had by reason of his corporate membership assumed certain duties created by law, for the performance of which neither he nor his evidence could be rightfully criticized. This statement, we think, was neither harmful nor inaccurate. The thought which it conveys is that just censure can not be grounded upon the performance of a legal duty. The right to criticize the witness and his testimony was not denied, but criticism directed against the discharge of a duty imposed by law was characterized as unjust. It is hardly possible that the jury were induced by the instruction to place an exaggerated or excessive value upon Pierson's evidence, for they were advised that they might consider the character of the business in which he was engaged and determine his credibility and the worth of his testimony by the application of the usual tests.
The constitutionality of the section of the statute under which the prosecution was conducted is raised and discussed at length. The point does not require particular consideration, as the cases of Durfee v. State, 53 Neb. 214, 73 N.W. 676, and Parsons v. State, 61 Neb. 244, 85 N.W. 65, decide that the argument of defendant's counsel is inadmissible and that the law is the result of a proper exercise of legislative power.
After the case was given to the jury and while they were deliberating upon their verdict the sheriff and bailiff having them in charge went with them to their room and remained with them for several hours. The trial court found that the sheriff and bailiff were in the back part of the room, which was quite large, and that the jury, while deliberating and discussing evidence, were north of the centre of the room; that neither of the court officers took any part in the deliberations or advised the jury regarding their verdict. The court further found that the presence of the sheriff and bailiff did not influence the jury in reaching their verdict and refused to grant a new trial...
To continue reading
Request your trial