Gandy v. State

• Citation: 40 N.W. 302,24 Neb. 716
• Parties: GANDY v. STATE.
• Decision Date: 09 November 1888
• Court: Supreme Court of Nebraska

24 Neb. 716

40 N.W. 302

GANDY

v.STATE.

Supreme Court of Nebraska.

November 9, 1888.

Syllabus by the Court.

Where depositions of certain witnesses on behalf of the defendant in a criminal case are taken by a commission appointed by a judge of the district court, such judge has the power, under section 462 of the Criminal Code, to prescribe the manner of taking such depositions, the usual mode being by interrogatories and crossinterrogatories; but this will not prevent the attorneys of either or both parties from appearing, and further examining or cross-examining the witnesses.

The names of witnesses upon whom the state relies to prove the charge against one accused of crime should be indorsed on the information at as early a day as practicable after the discovery of such witnesses, and in all cases before the day set for the trial of the case. REESE, C. J., dissents.

A prosecuting officer has no right to go to witnesses of a party accused of crime, and endeavor to dissuade them from appearing and testifying in the case; nor will his assumption that such witnesses are unreliable, and may testify falsely, justify him in such conduct. The question of the credibility of the witnesses is one for the jury, and not for the prosecuting officer.

Where a bailiff remains in a room with a jury during the time such jury are considering their verdict, it is sufficient to vitiate the verdict. The jury should have opportunity for private and confidential discussion. They should be permitted to comment with freedom upon the motives and conduct of parties and witnesses, and without restraint to express their views, which perhaps they could not publicly express without making enemies. The presence of an officer, therefore, for any considerable portion of the time, is an intrusion on this privacy, from which an injury to the accused will be presumed. REESE, C. J., dissents.

Error to district court, Pawnee county; CHAPMAN, Judge.

Information for perjury against James L. Gandy. Verdict of guilty, and defendant brought the case on error to the supreme court. See 36 N. W. Rep. 817. Another trial was had in the district court, and defendant was found guilty, and sentenced. He again brings error.E. W. Thomas, Humphrey & Lindsay, and J. L. Webster, for plaintiff in error.

The Attorney General, E. Falloon, F. Martin, and E. A. Tucker, for the State.

MAXWELL, J.

The plaintiff in error was charged on an information for perjury, in the district court of Richardson county, and on the trial was found guilty, and sentenced to imprisonment in the penitentiary for the period of five years. The case was brought on error to this court, and the judgment was reversed. A change of venue was had to Pawnee county, the countyseat of which is but a few miles from that of Richardson county; and, a trial being about to take place, the plaintiff filed an affidavit of prejudice against Judge APPELGET, whereupon the cause was continued, and afterwards a trial was had before Judge CHAPMAN, and a verdict of guilty rendered, and the plaintiff sentenced to imprisonment in the penitentiary. He now presents error to this court. A large number of errors are assigned, but four of which it will be necessary to notice. As there must be a new trial, we will not examine the evidence, nor as to the competency of one Hutton, called as a juror, nor the instructions; as the error, if any, probably will be corrected in the next trial. It may be said, generally, that on the trial the plaintiff in error, so far as the court is concerned, was treated with fairness and consideration, and has no cause of complaint.

1. The first error assigned is the misconduct of the county attorney, who prosecuted for the state, in cross-examining certain witnesses, whose testimony was taken at Oberlin, Kan. These depositions were taken under a commission appointed under the provisions of section 462 of the Criminal Code. The ordinary course for the judge, in appointing the commission, is to direct the mode of examination of the witnesses, which usually is by interrogatories and cross-interrogatories. Where, however, either or both parties appear by attorney, and further examine and cross-examine the witnesses, it will not be ground of error.

2. Misconduct of the county attorney and others in intimidating witnesses. In support of this charge, a number of affidavits were filed, which are now before us, and are as follows: “I, L. C. Thomas, being first duly sworn, say I reside in Richardson county, Neb. About a week ago last Monday I was subpœnaed on behalf of the defendant to appear here at the district court of Pawnee county, Neb., on April 23, 1888, and I did appear in obedience to said subpœna. This morning, during the progress of the trial of the above case, and before the witnesses on behalf of the defendant had been called to testify, Dr. B. Bell Andrews, a witness in the cause on behalf of the state, went to my room in the hotel, in Pawnee City, where I was stopping, and told me I had better not appear at said trial as a witness for the defendant, J. L. Gandy, and that if I did they would raise a mob in Humbolt, Neb., and come to where I live, and mob me. This morning, in Pawnee City, before the witnesses on behalf of the defendant had been called to testify, Edwin Falloon, the county attorney of Richardson county, Neb., who was prosecuting said case, told me I had better not appear to testify on behalf of the defendant in said case; that if I did it would not be well for me. By the statements made to me by said Andrews and Falloon I was put in fear. I was not placed on the witness stand, and did not testify in said cause.” J. L. Calvert, being first duly sworn, on his oath says that he is a resident of Oberlin, Decatur county, Kan.; and while said depositions were being taken one Edwin Falloon, the prosecuting attorney in this action, and county attorney of Richardson county, Neb., met affiant in the hall near the room in which such depositions were being taken, and asked affiant if he was going to be a witness in the case; and, on affiant informing him that such would not be the case at that time, said Falloon told affiant he had better not testify in the case; said that affiant was yet a young man, and that if he testified in favor of J. L. Gandy, and against the state, he would be testifying against a dozen good men, and would ruin his (affiant's) chances in life; and affiant further states that he did not testify at that time, nor was his evidence taken. Leonard Hutchins, being first duly sworn, deposes and says that he is one of the witnesses in the defendant's behalf in the above-entitled case; that on the 25th day of April, 1888, while affiant was walking in the streets of Pawnee City, and before affiant had testified in such case, one B. Bell Andrews, a witness for the state, in the hearing of affiant, and directing his remarks at affiant, said, “Damn him, there's a man come here to swear against me, and if he does so I'll have him arrested;” and after affiant had testified, and as he was leaving the witness stand in the court-room where such trial was taking place, the said Andrews remarked, “There goes a man who swore to a damned lie.” George J. Bentley, being duly sworn, on his oath says: “I reside in Oberlin, Decatur county, Kan. That on or about the third day of April one Edwin Falloon, county attorney for Richardson county, Neb., approached this affiant while in Oberlin, Kan., and in the law office of C. Webb Bertram, saying he (Falloon) would like to talk with me. We repaired to the private room of said office, when and where Mr. Falloon advised me not to testify in the case, as it would not be to my interest to do so.” On behalf of the state the following affidavits were filed: “B. Bell Andrews, who being first duly sworn, deposes and says that he is the Andrews mentioned in the affidavits of L. C. Thomas and Leonard Hutchins; that the affidavits of said Thomas and Hutchins are false in every respect, as far as the affiant is concerned; that affiant never made any statement of any kind to said Thomas or Hutchins about this case, nor did this affiant ever attempt to influence any witness in this case to testify or not to testify for or against the defendant, nor is the said Hutchins and this affiant on speaking terms.” “Edwin Falloon, who being by me first duly sworn, deposes and says that he is county attorney of Richardson county, Neb., and the Falloon mentioned in the affidavits of L. C. Thomas, J. L. Calvert, and George J. Bentley; that affiant says that he never tried to prevent said Thomas, Calvert, or Bentley from appearing as witnesses in this action; that affiant has not seen said L. C. Thomas for several weeks, and never had any conversation with him about this case at any time or place. And affiant further says that he had a conversation with J L. Calvert in Oberlin, Kan., about this case, in which he (Calvert) told him that Thayer and Gandy called for lease blanks in the office of Calvert and Wallace at the time the lease in question was alleged to have been executed; that affiant replied to said Calvert that it seemed strange that this conversation took place, because nothing of the kind was given in evidence upon the former trial; that affiant told said Calvert that he believed that Gandy was making a victim out of him; that what induced affiant to approach and talk to said Calvert about this case was that G. Webb Bertram, the notary before whom the depositions were taken, told affiant that said Calvert had tried to hire said Bertram to not take said depositions, but be away, and let W. A. Wilson, the person mentioned in the commission attached to said depositions, take them. And affiant further states that he asked Calvert to testify in this case at Oberlin, Kan., before said Bertram, but that said Calvert refused to do so; that affiant never at any time or place tried or asked the said Calvert, Thomas, or Bentley to not appear as a...