Dickinson v. State
| Decision Date | 08 September 1886 |
| Parties | DICKINSON AND OTHERS v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Saunders county.
S. Hy. Sornborger, for plaintiff.
The Attorney General, ( J. R. Gilkerson, with him,) for defendant.
This action was brought by the state against the plaintiffs in error, together with one Doan Benson, on a criminal recognizance given by them, conditioned for the appearance of the said Doan Benson at the October, 1882, term of the district court for Saunders county, to answer to an indictment preferred against him and his certain co-defendants for the crime of burglary. Process being served only upon the plaintiffs in error, they made their joint answer in the case, setting up various grounds of defense. A trial was had to the court, (a jury being waived,) which found for the plaintiff; and thereupon, after overruling a motion for a new trial on the part of the defendants, a judgment was rendered for the plaintiff for the sum of $555, together with costs; and thereupon the cause was brought to this court by petition in error.
There are eight errors assigned in the petition in error; but it is not deemed necessary to state them in detail here. It appears, from the bill of exceptions, that on the eighth day of March, 1882, upon the complaint of Anson U. Hancock, a warrant was issued by the county judge of Saunders county for the arrest of Doan Benson, the principal defendant in the action in the court below, together with three others, for the crime of burglary. On the same day, the said warrant having been placed in the hands of C. M. Pickett, (whether sheriff, constable, or person specially appointed to serve the same does not appear,) the defendants were arrested, and brought before the said county judge for examination. The said examination was, at the defendant's request, continued to the fourteenth day of the same month, and the said defendants entered into bonds, with security, for their appearance on the said adjourned day. On the fourteenth day of March, at the hour appointed, the said Doan Benson and one of his co-defendants appeared before the said county judge, waived a preliminary hearing, and entered into bond, with approved security, in the sum of $500, for their appearance before the district court of said county at the next term thereof, etc. At the next term of said district court, to-wit, on the eighth day of April, 1882, the said Doan Benson, together with his co-defendants in the proceedings above stated, having been jointly indicted by the grand jury of Saunders county for the crime of burglary,the same being the same burglary for which they had been arrested and held to bail by the said county judge as above stated, appeared in the said district court personally, as well as by counsel, were arraigned, and severally pleaded not guilty to the said indictment. Thereupon one of the codefendants of the said Doan Benson elected to take a several trial, was put upon his trial, and tried, upon the said indictment, before the said court and jury. The said jury failed to agree upon a verdict in said cause, were discharged by the court, and thereupon, as appears by the record and journal entry in said cause, it was It further appears that the said Doan Benson did not appear at the next term of the district court held in and for said county to answer said indictment, but wholly made default, whereupon his default was regularly entered.
The petition, after alleging the finding of the indictment by the grand jury of Saunders county against the said Doan Benson and his co-defendants, and the returning of the same into the said court, proceeds as follows: “And thereupon a capias was duly issued for the arrest of the said Doan Benson, and placed in the hands of C. E. Lillibridge, the sheriff of said county of Saunders; and at the said time an order was duly made by said court that the bail of the said Doan Benson be fixed at the sum of five hundred dollars; and the said C. E. Lillibridge, sheriff as aforesaid, by virtue of said capias, thereupon duly arrested the said Doan Benson, and took him into custody, and retained him, the said Doan Benson, in custody, until the thirteenth day of April, 1882; on which day, while the said Doan Benson was yet in the custody of the said C. E. Lillibridge as aforesaid, and during the vacation of said court, the said Doan Benson as principal, and the said defendants W. H. Dickinson and H. H. Dorsey as sureties, by virtue of said order of the court, duly entered into a recognizance to the state of Nebraska,” etc.
This petition was drawn under the provisions of sections 430-433, c. 41, pp. 833, 834, Comp. St., which provide as follows:
“Sec. 430. When any person shall have been indicted for a felony, and the person so indicted shall not have been arrested or recognized to appear before the court, the court may, at their discretion, make an entry of the cause on their journal, and may order the amount in which the party [indicted] may be recognized for his appearance by any officer charged with the duty of arresting him.
Sec. 431. The clerk issuing the warrant on such an indictment shall indorse thereon the sum in which the recognizance of the accused was ordered, as aforesaid, to be taken.
Sec. 432. The officer charged with the warrant aforesaid shall take the recognizance of the party accused in the sum ordered as aforesaid, together with good and sufficient sureties, conditioned for the appearance of the accused at the return of the writ before the court out of which the same issued; and such officer shall return such recognizance to the said court to be recorded, and proceeded on as provided in this Code.”
The case made by the pleadings is doubtless good under the statute above quoted, but does the evidence sustain the pleading? In reviewing the evidence, so far as may be deemed necessary, it may be proper to revert to the point, made in sundry modifications of form by the plaintiff in error, based upon the overruling of his objections, by the court, to the evidence offered by the state.
1. The plaintiff in error complains of the overruling by the court of his objection to the admission in evidence “of that part of the deposition of S. G. Chany which appears on the face of said deposition to have been taken on the eighth day of May 1884.” By reference to the record, it appears that, when this deposition was offered on the trial, counsel objected to it on the ground that it “was irrelevant, incompetent, immaterial, and not the best evidence.” But in the brief counsel endeavors to sustain this point of the petition on the ground that this deposition was introduced for the purpose of contradicting the record. At the time that this deposition was offered it was clearly inadmissible. In connection with the testimony subsequently introduced of the service and loss of the capias, which said Chany testified in the said deposition to having theretofore issued, and upon which, upon the theory of the plaintiff in the court below, the said Benson was arrested, the deposition was admissible; and had it been excluded when the objection of plaintiff in error was made, it would doubtless have been afterwards reoffered, and properly admitted. No error, therefore, can now be predicated upon its admission, even at a point of time and stage of the proceedings when, as we have above stated, it was inadmissible. And the objection that it contradicts the record cannot be sustained, for the reason that, as the case...
To continue reading
Request your trial