Hans v. State
| Decision Date | 07 January 1897 |
| Docket Number | 8463 |
| Parties | EMIL HANS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Stanton county. Tried below before NORRIS, J. Affirmed.
AFFIRMED.
C. C McNish, for plaintiff in error:
The overruling of accused's motion for a continuance upon condition that the prosecuting attorney would admit the witnesses would testify to facts set forth in the affidavit accompanying the motion, was erroneous.
The court erred in overruling the motion to require the state to elect as to the counts upon which it would proceed to trial. (Burrell v. State, 25 Neb. 581; Martin v. State, 30 Neb. 421; State v. Valentine, 63 N.W. [S.D.], 541; People v. Rice, 61 N.W. [Mich.], 540; People v. Aiken, 33 N.W. [Mich.], 821; Menken v. City of Atlanta, 2 S.E. [Ga.], 559; Griffin v. City of Atlanta, 4 S.E. [Ga.], 154; State v. Harris, 20 N.W. [Iowa], 439; People v. Rohrer, 58 N.W. [Mich.], 661.)
The court erred in imposing a double fine. (State v. Lancaster County, 6 Neb. 474; City of Tecumseh v. Phillips, 5 Neb. 305; Ives v. Norris, 13 Neb:, 252; Miller v. Hurford, 11 Neb. 377.)
A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state:
There was no error in the order overruling the motion for a continuance. (State v. Hatfield, 72 Mo. 518; State v. Mooney, 10 Iowa 506; People v. Brown, 59 Cal. 345; Burrell v. State, 25 Neb. 581.)
Other cases cited: Hornberger v. State, 47 Neb. 40; Rauschkolb v. State, 46 Neb. 658.
The facts are stated in the opinion.
John A Ehrhardt, the county attorney of Stanton county, filed an information in the district court of that county containing seventeen counts, the first fifteen of which charged Emil Hans with the unlawful selling of intoxicating liquors to different persons at various dates, and the remaining two counts charged him with keeping intoxicating liquors for the purpose of sale in violation of law. The accused, upon the trial, was found guilty as charged in the last two counts of the information, and acquitted on the other counts. A motion for a new trial was overruled, and the court sentenced the defendant to pay a fine of $ 100 on each of the two counts of the information under which he was found guilty.
The first matter of which complaint is made is the overruling of the defendant's motion for a continuance. A reversal cannot be had on this ground, for the reason it does not appear that the defendant was prejudiced by the ruling, or that there was any merit in his application. The motion states no reason for the postponement of the trial over the term, but purports to have been based upon an affidavit of some person not named in the application, and no such affidavit has been incorporated in the bill of exceptions. There is contained in the transcript what purports to be the copy of an affidavit made by the defendant which, judging from its scope, is possibly the one referred to in the motion. But whether or not it was used on the hearing, the record is wholly silent. Not having been embodied in the bill of exceptions, the affidavit is not entitled to consideration. (Strunk v. State, 31 Neb. 119, 47 N.W. 640; Vallindingham v. Scott, 30 Neb. 187, 46 N.W. 421; Olds Wagon Co. v. Benedict, 25 Neb. 372, 41 N.W. 254; Van Etten v. Kosters, 31 Neb. 285, 47 N.W. 916.)
The attorney general argues that, should the affidavit referred to be considered, and it was sufficient to support the application, there was no error in refusing the continuance, because the record shows that the county attorney, in open court, admitted that the witnesses named in the affidavit, if present, would testify to the facts therein set forth, and that such facts could be read to the jury as evidence, and that thereupon the ruling assailed was made. Counsel for the accused strenuously insist that the admissions of the prosecutor just mentioned were insufficient to prevent a postponement of the trial or to cure the error in denying the application therefor. This court has held in a civil case (Burris v. Court, 48 Neb. 179, 66 N.W. 1131) that it is not reversible error to deny an application for a continuance based upon allegations of the absence of a witness from the state, and of the facts to which he is expected to testify, when the party resisting such application admits that the testimony of the witness would be as represented and may be so treated on the trial. Whether the same rule obtains in criminal prosecutions this court has not hitherto offered an opinion, and it will not do so now, owing to the fact that the question is not sufficiently presented by the record. It may be noted in passing that the courts of the sister states are divided in their holding upon the proposition. .)
Objection is taken to the overruling of the defendant's motion made prior to the commencement of the trial, to require the state to elect whether it would proceed to trial upon the first fifteen counts of the information or the last two counts thereof. The answer of the state to this is that the ruling cannot be considered because not raised in a motion for a new trial. In the last contention we do not concur. The purpose of a motion for a new trial is to challenge the attention of the trial court to its rulings made during the trial proper,--that is, from the beginning of the impaneling of the jury until the return of the verdict,--in order that any errors therein may be speedily corrected before the case has passed beyond its control. Decisions not made during the trial, to which class the one under consideration belongs, are available on review, although not mentioned in a motion for a new trial, because they are not grounds for which a new trial can be moved. In Bohanan v. State, 15 Neb. 209, 18 N.W. 129, it was asserted that the ruling on a plea in abatement could be reviewed without having been assigned as error in the motion for a new trial. (See O'Donohue v. Hendrix, 13 Neb. 255; Graves v. Scoville, 17 Neb. 593, 24 N.W. 222.) In Ford v. State, 46 Neb. 390, 64 N.W. 1082, it was ruled that alleged errors in overruling challenges to jurors are not available when not called to the attention of the trial court in the motion for a new trial, since such rulings occurred during the trial.
As already stated, the last two counts charged the defendant with the unlawful keeping of intoxicating liquors for sale while the other counts charged the illegal sale of liquors. Separate and distinct crimes, it must be conceded, are joined in the information. The rule in regard to joinder of counts in cases of misdemeanors is that several distinct offenses of the same kind may be united in that manner in the same information. As stated by Mr. Black in his valuable treatise on Intoxicating Liquors, section 387: It does not follow, because more than one crime is charged, that the state was required to make an election of the counts of the information under which it would proceed to trial and rely for conviction. The selling of liquors without license and the keeping them for illegal sale, it is true, are separate and distinct offenses, but they are all of the same grade and belong to the same general group or class of crimes, therefore they are properly joined in separate counts of the same information. (Burrell v. State, 25 Neb. 581, 41 N.W. 399; Martin v. State, 30 Neb. 507, 46 N.W. 621; Nichols v. State, 49 Neb. 777, 69 N.W. 99; Black, Intoxicating Liquors, sec. 442; State v. Klein, 78 Mo. 627; Tillery v. State, 10 Lea [Tenn.], 35; People v. Charbineau, 115 N.Y. 433, 22 N.E. 271; Commonwealth v. Gillon, 84 Mass. 505; Walters v. State, 5 Iowa 507; Commonwealth v. Moorhouse, 67 Mass. 470.) In Burrell v. State, 25 Neb. 581, 41 N.W. 399, it is ruled that counts for selling intoxicating liquors on Sunday may be joined in an indictment containing a charge against the same person with selling such...
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