DiNsmore v. State
| Decision Date | 06 March 1901 |
| Parties | DINSMORE v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Chapter 54 of the Criminal Code, which authorizes the prosecution of criminal offenses by information, does not violate the rule of uniformity prescribed by section 19, art. 6, of the constitution.
2. Said chapter 54 of the Criminal Code authorizes the filing of an information or an indictment in each and every county in the state, and applies to every county and to every district court, and hence is general in its operation, and not special.
3. Said chapter 54 of the Criminal Code is not obnoxious to section 19, art. 6, of the constitution merely because it permits the prosecution of one person by information and another by indictment in the same court.
4. The mere fact that a district court may elect whether a grand jury shall or shall not be called in any term of court does not make said chapter 54 lacking in uniformity.
5. The proceedings and practice of the several district courts of the state are uniform, even though the prosecution in one case may be by information in one county, and in another case in another county by indictment, since wherever the proceeding is by indictment, if it obtain in every county, the proceedings relating to indictments are uniform, and the same is likewise true if by information.
6. It was never contemplated by the framers of section 10, art. 1, of the constitution, or by the people in adopting it, that the legislature must either abolish the grand jury system entirely, and permit criminal prosecutions by information only; but, rather than that, the legislature might authorize prosecutions by either indictment or information, making the proceedings uniform in each method.
7. Section 584 of the Criminal Code, which leaves to the discretion of any district court the determination of whether a grand jury shall be drawn, is not conferring upon the judicial branch of the state government legislative powers, inhibited by section 1, art. 2, of the constitution.
8. Section 584 of the Criminal Code is not special legislation within the purview of section 15, art. 3, of the constitution.
9. The legislature has the power to abolish any office by it created.
10. The office of district attorney was not created by the constitution, but by general law, before the adoption of that instrument.
11. The office of district attorney has been abolished.
12. The legislature had the constitutional power to create the office of county attorney.
13. It is the duty of a county attorney to file informations for crimes and to prosecute all criminal cases in his county.
14. The objection that the defendant in a criminal case has not had a preliminary examination is waived, unless raised before he enters a plea of not guilty.
15. The granting or refusing of a continuance of a criminal cause rests in the sound discretion of the court, and a ruling in that regard will not be disturbed on review, in the absence of a showing of an abuse of discretion.
16. When at any term of the district court, for any cause, there is no panel of petit jurors, the court may, under section 664 of the Code of Civil Procedure, direct the sheriff to summon jurors.
17. Said section 664 of the Code of Civil Procedure is not inimical to section 19, art. 6, of the constitution, as it does not violate the rule of uniformity therein prescribed.
18. The evidence relative to the impaneling of a jury must be incorporated in the bill of exceptions, and embraced in the certificate allowing and settling the bill, to entitle one to review the rulings of the court in denying a challenge for cause.
19. Error cannot be successfully predicated upon a ruling, where the record is contradictory as to what the ruling was.
20. The ruling of a trial court in deciding a challenge for cause will not be disturbed, unless an abuse of discretion is shown.
21. An opinion formed by a venireman in a criminal cause does not affect his competency, or afford cause for challenge, unless it is unqualified as to the guilt or innocence of the accused of the crime charged.
22. An opinion formed solely on rumor and newspaper reports will not disqualify a juror, where it is shown that the opinion is merely hypothetical, and such as will not prevent his returning a fair and impartial verdict upon the evidence adduced on the trial, under the instructions of the court.
23. The entertaining of conscientious scruples against capital punishment is a ground for challengefor cause in a prosecution for murder in the first degree, and it is competent to interrogate a venireman upon that subject.
24. In a prosecution for murder, where the death of the victim was occasioned by a gunshot wound, the theory of the defense being suicide of deceased, it is competent for a physician, who has examined the body and the surroundings at the place where it was found, to testify as to the position in which the body must have lain for the blood to take the course from the wound it did.
25. The propounding of leading questions is within the discretion of the trial court.
26. Rulings on the admission of testimony examined and approved.
27. One cannot successfully assail an instruction, where one tendered by him has been given which is subject to the same criticism.
28. Before a party can complain of an instruction because not sufficiently specific, he must request an instruction covering the point.
29. In a criminal prosecution the trial court may, in its discretion, give a cautionary instruction.
30. Counsel for the state, in argument to the jury, may criticise the conduct of the defendant, as disclosed by the evidence, though such defendant was not a witness in his own behalf.
31. It is not erroneous to designate the defendant in such a case in an instruction as the “prisoner.”
32. Questions of mercy are not for the jury, but for the executive, in the exercise of the pardoning power; and it is not erroneous to so instruct the jury in a prosecution for murder.
Error to district court, Dawson county; Sullivan, Judge.
Frank L. Dinsmore was convicted of murder, and brings error. Affirmed.
Norris Brown, Hamer & Hamer, and E. A. Cook, for plaintiff in error.
The Attorney General and H. M. Sinclair, for the State.
In the district court of Dawson county, to which county the case had been taken on change of venue from Buffalo county, Frank L. Dinsmore was convicted of murder in the first degree, and sentenced to be hanged, from which he comes to this court on error. From the evidence of record, it appears that for a year or more prior to the homicide defendant had been boarding at the home of one Fred Laue, in the little town of Odessa, in Buffalo county, during which time improper relations commenced between defendant and Mary Laue, wife of said Fred Laue, which relations continued with more or less regularity down to the time of the tragedy. After such relations commenced Dinsmore married and brought his wife to board at Laue's. While they were boarding there, he proposed to Mrs. Laue that he kill his wife and Laue, and so arrange their bodies as to make it appear that Laue had murdered Mrs. Dinsmore and had then committed suicide. Mrs. Laue, the principal witness for the state, claims she would not assent to this, but that she did, through fear of Dinsmore, remain silent while Dinsmore accomplished his fell purpose. The details of the act, that of “a fiend in the ordinary display and development of his character,” are not necessary to an understanding of the errors alleged to have been committed by the trial court. On an information charging him with the murder of Laue, Dinsmore was convicted. The errors argued will be noticed in the order of their presentation in the brief of defendant.
The provisions of the Criminal Code which permit prosecutions by either indictment or information are attacked by counsel for defendant as being in violation, among others, of section 19 of article 6 of the constitution, which is as follows: “All laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction, powers, proceedings, and practices of all courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments, and decrees of such courts, severally, shall be uniform.” It is urged that the statutes which authorize the prosecution of criminals by either information or by indictment, depending on the discretion conferred upon courts by section 584 of the Criminal Code, relating to the calling of a grand jury, violates the rule of uniformity and generality prescribed in said section of the constitution. It is insisted that chapter 54 of the Criminal Code, which permits the filing of informations, is not general, because it admits of the filing of an information in one county and of an indictment in another county, while it should admit of the filing of one or the other in all counties, but not of both. The objection is not well grounded. The law permits the filing of either indictments or informations in any county in the state, and whether a prosecution shall be by indictment or by information depends upon whether a grand jury is or is not in session. The same law applies to every county in the state, and for that reason is general, and in no respect special.
It is urged that it is not of uniform operation for this reason, and for the additional one that in the same court it permits an information to be filed in one case against a defendant and an indictment to be filed in another case, and all according to the whim or inclination of the judge. We think nothing depends upon the whim or inclination of the judge, but that it is left to the sound discretion of the court,––a very different thing. But does the mere fact that in the same court a man may be prosecuted by either information or indictment detract from the uniformity of the law? Does it not apply to every county in the...
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Neb. Const. art. V § V-19 Practice of All Courts to Be Uniform
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