Green v. State
| Decision Date | 14 March 1928 |
| Docket Number | 25865 |
| Citation | 218 N.W. 432,116 Neb. 635 |
| Parties | SAMUEL GREEN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hamilton county: LOVEL S. HASTINGS JUDGE. Affirmed in part, and reversed in part.
AFFIRMED IN PART, AND REVERSED IN PART.
J. H Grosvenor, for plaintiff in error.
O. S Spillman, Attorney General, and Lloyd Dort, contra.
OPINION
An information against Samuel Green was filed in the district court for Hamilton county containing two counts, each in usual terms, the first charging him with the unlawful sale of intoxicating liquor to one Port Cool, and the second charging him with the unlawful possession of intoxicating liquor, each specifying the date as on or about July 23, 1926. Both counts charge misdemeanors, and are controlled by sections 3238 and 3288, Comp. St. 1922. Dunlap v. State, ante, p. 313.
On this information the defendant was duly arraigned and entered a plea of not guilty, at which time additional names were, by leave of court, added to those listed upon the information, among which was the name of the county surveyor of Hamilton county. The case was then tried to a jury, and verdict returned finding defendant guilty as to each count, upon which verdict judgment was entered sentencing defendant to imprisonment in the county jail of such county for 60 days on the first count, and to 30 days on the second, commencing on the expiration of the sentence on the first. To reverse this judgment error is prosecuted. The plaintiff in error will be hereinafter called defendant. There are seventeen different errors assigned as reasons why the judgment of the trial court should be reversed. These claimed errors will be designated as they are reached for consideration.
It is urged by defendant that the verdict is without support in the evidence. A careful reading of the bill of exceptions convinces us that this challenge, as to the first count, is not supported by the record, and that the judgment as to it should be affirmed. However, as to the second count, we find that the verdict is not sustained by competent evidence, and the judgment as to it should be reversed.
The further challenge is presented by defendant: That this action was first lodged in the county court of Hamilton county; that defendant was arraigned and entered a plea of not guilty; evidence was introduced, at the close of which defendant was bound over to the district court, as is usual in cases of preliminary hearings, and entered into the necessary recognizance for his appearance in such district court; that the misdemeanors charged in the district court were the same as those charged in the county court, and the latter was possessed of jurisdiction to try and finally determine the matters thus involved and should have done so; that the proceedings had in the county court after the close of the evidence was without authority in law and void, and did not serve to dispossess the county court of jurisdiction or to vest the district court therewith. As to this challenge, it is sufficient to say that the record of the trial in the district court in no manner discloses that which is claimed to have taken place in the county court, save and except that the proceedings in the county court are made a part of the transcript in this present case; neither does the record here disclose that the proceedings had in the county court were in any manner called to the attention of the district court. Further, no objections were interposed on the part of defendant at the trial to the procedure had in this instant case, either by way of motion to quash, plea in abatement, or otherwise, and neither were the questions here presented in any manner called to the attention of the trial court in the motion for a new trial. As we said in Weber v. Kirkendall, 44 Neb. 766, 63 N.W. 35: "Primarily the office of a motion for a new trial is to afford the court an opportunity to correct errors in its own proceedings without subjecting parties to the expense and inconvenience of appeal or petition in error." Thus, it has become an elementary rule of our procedure that "alleged errors of the trial court in an action at law, not referred to in the motion for a new trial, will not be considered in this court." Pennington County Bank v. Bauman, 81 Neb. 782, 116 N.W. 669. Further, the record here shows that the information was read to defendant, to which he entered a plea of not guilty and proceeded with the trial, as heretofore indicated. The jurisdiction of the district court and the county court, as to the misdemeanors charged, was concurrent. Comp. St. 1922, sec. 9989, chapter 57, Laws 1925. Then, as we concluded in Nelson v. State, 115 Neb. 26, 211 N.W. 175: "It being determined that the district court has original jurisdiction of the offense charged, the effect of the so-called waiver of preliminary examination, disclosed by the record, cannot be considered at the present time for the reason that no plea in abatement was filed." Further, as we held in Huette v. State, 87 Neb. 798, 128 N.W. 519: "Under the provisions of section 444 of the Criminal Code (now section 10113, Comp. St. 1922) defects which might have been attacked by a motion to quash, or a plea in abatement, are waived when a defendant pleads to the general issue; and this is true as well when he pleads voluntarily as when he stands mute and a plea of not guilty is entered for him by the court"--following Trimble v. State, 61 Neb. 604, 85 N.W. 844. In the course of the opinion in the Huette case, we said: In support of this statement many of our holdings are cited. Thus, we must conclude that such challenge does not present reversible error.
As to the alleged errors occurring at the trial in the introduction of evidence, and as to the other claimed errors presented, while each thereof has been considered, they are not likely again to occur if a new trial is had on the second count, hence a discussion thereof would serve no useful purpose, and the same is omitted. However, it might be well to state that as to the challenge to the testimony of the county surveyor and the exhibits by him furnished in connection therewith, we are convinced that prejudicial error was committed by the introduction thereof, and the objection thereto should have been sustained, as such evidence was incompetent and its tendency was to raise an issue collateral to that under consideration.
It therefore follows that the judgment of the trial court as to the first count in the information is affirmed, and as to the second count is reversed, and the cause as to such second count is remanded for further proceedings.
AFFIRMED IN PART, AND REVERSED IN PART.
I dissent from the affirmance of the conviction of Samuel Green on the first count of the information charging him with the illegal sale of intoxicating liquor on July 23, 1926, but concur in the reversal as to the second count charging illegal possession on the same day. This case involves a question of evidence which has not been determined by this court, so far as I know, and one that is important to the enforcement of legislation pertaining to constitutional prohibition. The nature of the thing prohibited by the Constitution, and the obvious difficulties of properly enforcing the law, are such that the legislature has enacted more meticulous laws than are ordinarily necessary to the prosecution of other statutory crimes not so perplexing. It is necessary to state the facts fully, but as briefly as possible.
Shortly before July 23, 1926, one Port Cool served a jail sentence in Aurora under "Jim" Howard, the sheriff of Hamilton county. On that date the sheriff gave $ 10 to Cool to make a purchase of liquor from Green, who had been suspected, but not previously arrested, of bootlegging. The sheriff did not see Cool go into Green's home place, nor until he came back to the highway. Cool testified to purchasing two quarts of intoxicating liquor for $ 6, receiving back and returning $ 4 to the sheriff. Cool was stopped by the sheriff who took the liquor from Cool's car. The sheriff immediately went to defendant's house, knocked on the door and received no answer. He said he heard a shuffling noise in the house. Cool said when he went to defendant's house he knocked and received an immediate response. The sheriff, it then being about 9:15 o'clock p. m., returned to Aurora. About 11:30, the same evening, he left two men to watch the house all night. Not until about 5 o'clock the following morning did they see defendant, when he came out with a milk bucket. Later the sheriff and others made a thorough search of Green's house, other buildings, and Green's premises which included 80 acres of land. No liquors, or any indication thereof, were discovered. Later the search was extended to land of one Adams which adjoined the land of Green, separated by a two or three-strand wire fence of 30 years' standing as a division line. Some bottles, jugs, utensils and a keg were found about five feet from the fence on the Adams side, evidently used for holding intoxicating liquor; some liquor being found in one or more of them. No liquor and no container was found on...
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