Dutcher v. State

• Decision Date: 29 May 1884
• Citation: 19 N.W. 612,16 Neb. 30
• Parties: ORLANDO DUTCHER, HOMER DUTCHER, AND PETER DUTCHER, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 612

16 Neb. 30

ORLANDO DUTCHER, HOMER DUTCHER, AND PETER DUTCHER, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Holt county. Tried below before BARNES, J.

AFFIRMED.

H. M Uttley, for plaintiffs in error.

Isaac Powers, Jr., Attorney General, for the State.

OPINION

COBB CH. J.

The plaintiffs in error were indicted in the district court of Holt county, under sec. 26 of the criminal code, which reads as follows: "If three or more persons shall assemble together with intent to do an unlawful act with force and violence against the person or property of another, or to do any unlawful act against the peace, or being lawfully assembled shall agree with each other to do any unlawful act as aforesaid, and shall make any movement or preparation therefor, the persons so offending shall be fined in any sum not exceeding one hundred dollars, and be imprisoned in the jail of the county not exceeding three months." Upon trial they were found guilty and sentenced to pay a fine of one hundred dollars and costs, to reverse which judgment they bring their case to this court.

The first point made by plaintiffs in their brief is upon alleged errors on the part of the district court upon the trial of the cause. This is rather a general criticism upon the course of the court in that behalf, no specific instance of ruling being pointed out. And, upon a careful reading of the bill of exceptions, I fail to find a single question put to a witness by counsel for the state, objected to by counsel for the defendants, the objection overruled by the court, and defendants excepting to such ruling, and the question answered by the witness, where the answer could possibly have been prejudicial to the defendants.

The second point is, that the motion of defendants for a new trial should have been allowed, for the reason that the verdict was unsustained by the weight of evidence, etc. It has often been said here, and it seems that it cannot be too often repeated, that this court cannot reverse a judgment merely upon the weight of evidence, and it is equally true that a trial court ought not to set aside a verdict of a jury upon that ground alone. To establish the rule that it may do so, would be to make the court and not the jury the judge of the facts as well as of the law. If there is distinct evidence of each material fact necessary to establish the guilt of the accused legally before the jury, then a verdict against him must stand, although such testimony may be contradicted by never so many witnesses, and never so many circumstances may conspire to discredit it. All of these should be weighed by the jury in making up their verdict, but not by the court for the purpose of setting it aside.

Third The rather novel objection is made to the instructions that, while they were not excepted to, and counsel expressly states that he believes that they...