Emery v. State

Decision Date21 March 1907
PartiesEMERY v. STATE.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

Where the charge of contempt of court is set forth in an information in positive and direct terms, the statement by the public prosecutor, in his verification thereto, “that the allegations and charges in the within information are true, as he verily believes,” does not render such information void.

One cannot object to a verification of a complaint or information after he has been arraigned and pleaded not guilty, unless such plea has been withdrawn, and an objection of that kind, made for the first time in a motion for a new trial, comes too late.

All willful attempts, of whatever nature, seeking to improperly influence jurors in the impartial discharge of their duties, whether it be by conversations or discussions, or attempts to bribe, constitute contempts.

In a prosecution for contempt, where the act complained of is in itself a contempt of court, a denial on oath of its commission raises an issue of fact for trial, and does not entitle the accused to an acquittance.

Error to District Court, Gage County; Raper, Judge.

George E. Emery was found guilty of contempt, and brings error. Affirmed.R. W. Sabin, A. Hazlett, and S. Rinaker, for plaintiff in error.

S. D. Killen and L. M. Pemberton, for the State.

BARNES, J.

George E. Emery, hereafter called the accused, prosecutes error from a judgment of the district court of Gage county, by which he was found guilty of a contempt of court, and adjudged to pay a fine of $25 and the costs of the prosecution. The complaint or information on which he was prosecuted charged him with an attempt to influence a member of the jury in a certain civil action, which was being tried in the district court of that county, on the 13th day of September, 1905. His plea or answer to the charge was: First, not guilty; and, second, a general denial.

His first contention is that the complaint or information is void because the charge contained therein was made upon information and belief only. An examination of the record discloses that in the charging part of the complaint the facts are stated positively, directly, and without equivocation, and the verification reads as follows: S. D. Killen, being first duly sworn upon his oath, says that he is the county attorney in and for Gage county, in the First judicial district of the state of Nebraska, and that the allegations and charges against George E. Emery, in the within information, are true as he verily believes. * * *” It appears that this is the usual manner of verifying criminal informations in this jurisdiction. The accused, however, cites a number of authorities in support of his contention, but they seem to be beside the mark, and apply to cases where the charge in the body of the complaint was made on information and belief only. It appears that the complaint in this case is sufficiently positive and certain in its charging part, and the fault, if any, lies in the verification. But this defect, if it be such, was waived, for we find that the accused made no objection to the complaint, but filed his answer of not guilty, together with a general denial, and immediately announced his readiness to proceed to trial. In fact the record shows that this question was raised for the first time by him in his motion for a new trial. The objection, therefore, comes too late, for one cannot object to the verification of a complaint after he has been arraigned, and pleaded not guilty, unless such plea has been withdrawn. Johnson v. State, 53 Neb. 103, 73 N. W. 463.

It is next contended that no offense is charged in the information. The acts of the accused set forth in the complaint are, in substance, as follows: That on the evening of the 13th day of December, 1905, as one of said jurors, namely, Christian Miller, was leaving the courthouse, George E. Emery approached said juror, and told him that he wanted to see him down town that evening; that the juror, supposing Emery wanted to see him about some trade, asked him where he should see him, and Emery said down town at the hotel; that about 8 o'clock that evening the juror went to the Paddock Hotel, which is in the city of Beatrice, Gage county, Neb., and there met the accused, and, after talking some time with him about other matters, said: “What was it you wanted to see me about?” That Emery thereupon said: “Come on, and I will show you.” That they left the hotel, went south to Court street, then west on Court street about a block and a half until they same to a saloon, which they entered, proceeded to the back end of the room, and seated themselves at a table; that Emery called for beer, and two glasses were furnished--one for the juror, and one for Emery; that after being seated at the table Emery said to the juror: “It is about the case. Some of the parties want a...

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12 cases
  • State v. Owens
    • United States
    • Oklahoma Supreme Court
    • May 24, 1927
    ... ... It is not our purpose to discuss these ... question, interesting as they may be when they arise. The ... only American case that we have been able to find on the very ... question here before us, namely, How must an information by a ... public prosecutor be verified? is Emery v. State, 78 ... Neb. 547, 111 N.W. 374, 9 L. R. A. (N. S.) 1124. The ... defendant was charged with influencing a juror in a criminal ... case in which he was a party by agreeing to pay and ... subsequently paying him cash. Manifestly the public ... prosecutor would have no personal ... ...
  • State ex rel. Attorney Gen. v. Owens
    • United States
    • Oklahoma Supreme Court
    • May 24, 1927
  • Prine v. State
    • United States
    • Mississippi Supreme Court
    • June 7, 1926
    ... ... waived when the defendant answers and makes defense without ... objection: Sona v. Aluminum Casting Co., 214 F. 936; ... In re Odom, 133 N.C. 250, 45 S.E. 569; A. T. & ... S. F. Ry. Co. v. State, 35 Okla. 532, 130 P. 940; ... Emery v. State, 9 L. R. A. (N. S.) 1124, 78 Neb ... 547, 111 N.W. 374. The cause ought to be affirmed ... [108 So. 717] ... [143 ... Miss. 237] ANDERSON, J ... On the ... relation of Toxey Hall, district attorney of the Fifteenth ... circuit court district of ... ...
  • Prine v. State.
    • United States
    • Mississippi Supreme Court
    • June 7, 1926
    ... ... waived when the defendant answers and makes defense without ... objection: Sona v. Aluminum Casting ... Co., 214 F. 936; In re Odom, 133 N.C. 250, 45 ... S.E. 569; A. T. & S. F. Ry. Co. v ... State, 35 Okla. 532, 130 P. 940; Emery ... v. State, 9 L. R. A. (N. S.) 1124, 78 Neb ... 547, 111 N.W. 374. The cause ought to be affirmed ... ANDERSON, ... J., delivered the opinion of the court ... On the ... relation of Toxey Hall, district attorney of the Fifteenth ... circuit court district of this ... ...
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