Dolen v. State

• Citation: 19 N.W. 627,15 Neb. 405
• Parties: JAMES DOLEN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Decision Date: 29 May 1884
• Court: Supreme Court of Nebraska

19 N.W. 627

15 Neb. 405

JAMES DOLEN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Gage county. Tried below before WEAVER, J.

AFFIRMED.

Colby & Hazlett, for plaintiff in error.

Isaac Powers, Jr., Attorney General, for defendant in error.

OPINION

REESE, J.

At the April term, 1882, of the district court of Gage county an indictment was found against the plaintiff in error, who was a saloon keeper in Beatrice, charging him with unlawfully keeping the windows and doors of his place of business obstructed by a certain article known as ground glass. [Comp. Stat., § 29, chap. 50.] To this indictment the plaintiff in error plead "not guilty," and upon trial to a jury a verdict of guilty was rendered.

A motion for a new trial was made and overruled, and a judgment entered fining the plaintiff in error twenty-five dollars. The case is brought into this court by petition in error.

The motion for a new trial is based solely on the ground of misconduct of the district attorney in directing the clerk of the court to call a certain juror (of the regular panel) while the jury was being impaneled. We find attached to the transcript the affidavit of a member of the bar of said county supporting said motion, and the affidavits of the district attorney and the clerk of the court fully disproving said charge. So that were the question submitted to this court we would have to decide that the motion for a new trial was properly overruled. But there is nothing to show that these affidavits were ever submitted to the trial court, as they are not embodied in the bill of exceptions and cannot be considered here. Ray v. Mason, 6 Neb. 101. Credit Foncier v. Rogers, 8 Neb. 34. Aultman v. Howe, 10 Neb. 8, 4 N.W. 357. Oliver v. Sheeley, 11 Neb. 521, 9 N.W. 689.

Other objections are urged by the plaintiff in error in his brief, but as none of them were presented to the trial court they cannot be considered here. Birdsall v. Carter, 11 Neb. 143, 7 N.W. 751.

We have examined the case with care and find the verdict of the jury fully sustained by the evidence. The judgment of the district court is affirmed.

JUDGMENT AFFIRMED.

THE other judges concur.