Gragg v. State
| Decision Date | 04 December 1924 |
| Docket Number | 24105 |
| Citation | 201 N.W. 338,112 Neb. 732 |
| Parties | RAY GRAGG v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for McPherson county: GEORGE C. GILLAN JUDGE. Affirmed: Sentence reduced.
AFFIRMED: SENTENCE REDUCED.
John F Cordeal, Frank M. Colfer, B. F. Butler and Walter D. James for plaintiff in error.
O. S. Spillman, Attorney General, and Harry Silverman, contra.
Heard before MORRISSEY, C. J., ROSE, DEAN, GOOD, and THOMPSON, JJ.
Defendant was charged in McPherson county with stealing "one spotted heifer calf, weight about 450 pounds, eight months old," and, upon conviction, was sentenced to serve a term in the penitentiary of not less than two nor more than four years. He prosecutes error.
The assignments of alleged error will be taken up in the order in which they are presented in the briefs.
Mr. R. H. Beatty, an attorney of Lincoln county, was appointed to assist in the prosecution, on the application of Mr. George N. Gibbs, county attorney for McPherson county, under section 4916, Comp. St. 1922, as amended, Laws 1923, ch. 41. The objection is that Beatty "was privately employed by private persons" and was disqualified because he was paid for his services solely by the "Nebraska Stock Growers' Association." But neither McPherson county nor Mr. Charles Chessmore, the owner of the stolen property, paid any part of this fee, nor is the latter a member of the association.
Defendant cites McKay v. State, 90 Neb. 63, 132 N.W. 741, and Flege v. State, 93 Neb. 610, 142 N.W. 276, in support of his contention. In the McKay case defendant's counsel made a timely motion to exclude private counsel from participating in the prosecution on the ground (1) that the assistant was not the deputy county attorney; (2) that the county attorney had not requested the appointment; (3) that he had not taken an official oath; and (4) that he was employed and paid "by the brothers and sisters of the deceased" whom it was charged McKay had feloniously slain. Defendant's motion was overruled on the ground that an order had been entered "in the presence of the defendant and his counsel" "at the commencement of the empanelment of the jury that M. F. Harrington is permitted to assist the county attorney in the prosecution." On appeal it was held that the court erred because (1) it was not shown that the county attorney requested the appointment; and (2) the mere fact that the court permitted counsel to assist was not a compliance with the statute; and (3) that mere acquiescence by the court and county attorney is not sufficient.
In the Flege case an assistant prosecutor was appointed, on the county attorney's application, who had theretofore been employed and paid by a person who was suspected of having feloniously killed the decedent. And it appears that he assisted in the preliminary examination and also in a former trial of the accused in the district court and, as stated in the opinion, had taken "an active part in both trials for the purpose of protecting his suspected client." On appeal this court held that, under the circumstances attending the appointment, "a fair and impartial trial of the accused person could not be reasonably expected." The judgment of conviction was reversed.
Section 4916, Comp. St. 1922, was enacted for the express purpose of authorizing the county attorney to procure such assistant counsel as he may deem necessary for a felony trial. Bush v. State, 62 Neb. 128, 86 N.W. 1062; Blair v. State, 72 Neb. 501, 101 N.W. 17; Lower v. State, 109 Neb. 590, 191 N.W. 674; 18 C. J. 1336, sec. 79. Its object is that, under the court's direction, assistant counsel may be procured who will not, in his zeal for a verdict, be tempted to prevent the accused from having a fair and impartial trial. It is obvious that the participation of counsel, as an assistant prosecutor, who has been employed by a person having ulterior motives, as against the accused, might seek to bring about the conviction of an innocent person to gratify the animosity of an unprincipled client.
It is unthinkable that the legislature, in the enactment of section 4916, held any other thought than that the state, by the county attorney, should have not only the privilege, but that, for obvious reasons, it should be his bounden duty, in a proper case, to procure the appointment of such assistance as the exigencies of a felony case might require, to the end that the state might be thereby enabled to present the material facts to the jury, unbiased and unprejudiced by improper motives. In the present case the facts are so vastly dissimilar from the facts in the McKay and Flege cases that defendant's contention finds no support in either. The evidence discloses that reversible error cannot be predicated on this assignment.
When the case was first called for trial in September, 1923, defendant filed a plea in abatement, wherein he alleged that the information was not filed within three years next after the date of the commission of the alleged offense. But in this counsel seem to be mistaken, because it appears that the alleged offense was committed October 12, 1918, and the information was filed October 7, 1921. Comp. St. 1922, sec. 9931; Boughn v. State, 44 Neb. 889, 62 N.W. 1094, reaffirmed in State v. Robertson, 55 Neb. 41, 75 N.W. 37. It is not argued, however, that the information was not served upon defendant, within the time required by statute, before the trial commenced. Comp. St. 1922, sec. 10104. Besides the foregoing averments, defendant charges that Mr. Gibbs, who verified and filed the information, was not the duly qualified, elected or appointed county attorney of McPherson county, and that "his pretended acts as such assumed official were and are without authority of law and of no force or effect." But the record shows that his appointment was regular. He did not, however, take the official oath nor file a bond. But he held himself out as county attorney and performed the duties pertaining to this office and was recognized by the public as county attorney, so that he was county attorney de facto. Baker v. State, ante, p. 654.
However, the title to a public office cannot be collaterally attacked, nor can it be determined under a plea in abatement, but ordinarily by quo warranto. 32 Cyc. 691; State v. Gonzales, 26 Tex. 197. In view of the evidence the court did not err in overruling defendant's plea in abatement in its entirety.
On the same day that defendant's plea in abatement was overruled, at the September, 1923, term of court, the following proceedings were had, as shown by the record namely: September 27, 1923, a jury was selected and sworn and the state introduced its evidence and rested. Defendant introduced no evidence and rested. The argument proceeded and the jury, having been instructed, retired in charge of the sheriff. The court's attention was then called to the fact that defendant had not been arraigned, and had not pleaded to the information. Whereupon the jury were recalled and, on motion of the state, defendant was arraigned, the information was read to him and, upon being called upon to plead, he pleaded not guilty. The jury were then resworn to try the case and the state announced its readiness...
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