Hans v. State

• Decision Date: 07 January 1897
• Citation: 69 N.W. 838,50 Neb. 150
• Parties: HANS v. STATE.
• Court: Nebraska Supreme Court

50 Neb. 150

69 N.W. 838

HANS

v.STATE.

Supreme Court of Nebraska.

Jan. 7, 1897.

Syllabus by the Court.

1. Affidavits for a continuance must be embodied in a bill of exceptions, to be considered in the appellate court.

2. Whether the prosecution in a criminal case may avoid a continuance sought by the defendant on a showing which entitles him to a postponement of the trial on the ground of an absent witness, by the state admitting merely that the witness, if present, would testify as represented in the application, is not involved in this case, and consequently not decided.

3. The ruling of the court, made before the trial commenced, denying the defendant's motion to require the state to elect under which count or counts of an information it would rely for conviction, is reviewable without being assigned as error in the motion for a new trial.

4. A count charging the illegal sale of intoxicating liquors may be joined in an information containing a count charging the defendant with keeping such liquors for sale in violation of law.

5. An order in a criminal case permitting the state to withdraw its rest for the purpose of introducing further testimony, will not be disturbed where an abuse of discretion on the part of the trial court has not been shown.

6. Where the bill of exceptions reveals that material evidence introduced on the trial has been omitted, this court cannot review an order denying a motion to direct a verdict, when to do so would require an examination of the proofs.

7. In a prosecution for a misdemeanor it is not essential that the state should prove the commission of the offense on the precise date laid in the information. It is sufficient if it be established that the crime was committed within the statute of limitations.

8. The unlawful intent with which intoxicating liquors are kept may be presumed by the recent prior sale by the defendant of the same kind of liquors in violation of law.

9. Held, that the first instruction did not assume the possible existence of a single fact, but merely told the jury what were the material averments of the information.

10. A charge which, construed as a whole, plainly states the law applicable to the case, is without error.

11. An assignment in a petition in error that the court erred in denying the motion for a new trial is too indefinite to be available where several distinct grounds are stated in the motion.

12. Each act of keeping for the purpose of sale, without a license or permit issued by the proper body, any malt, spirituous, or vinous liquors in this state, constitutes a misdemeanor.

13. Where an information contains two counts, each charging the keeping for sale in violation of law of a different kind of intoxicating liquors, and defendant is found guilty on both counts, separate sentence is to be imposed for each conviction.

14. In re White, 51 N. W. 287, 33 Neb. 812, followed upon the question of the constitutionality of chapter 33, Sess. Laws 1889.

Error to district court, Stanton county; Norris, Judge.

Emil Hans was convicted of keeping intoxicating liquors for the purpose of sale in violation of law, and brings error. Affirmed.

C. C. McNish, for plaintiff in error.

A. S. Churchill, Atty. Gen., and Geo. A. Day, Deputy, for the State.

NORVAL, J.

John A. Ehrhardt, the county attorney of Stanton county, filed an information in the district court of that county containing 17 counts, the first 15 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;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. See authorities cited in the briefs filed herein; also 4 Enc. Pl. & Prac. 865.

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, 13 N. W. 215;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 charge 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): “To sell liquor unlawfully and to keep it for sale unlawfully are entirely distinct offenses under these statutes, founded on distinct criminal purposes, and completed by different criminal acts. Hence it follows that, although the offender will be liable to prosecution under a statute for the unlawful selling of liquors, when the sale is consummated, this will not hinder his being punished for the unlawful keeping of liquors before the sale. For the same reason, a conviction or acquittal for one of these offenses is no bar to the prosecution for the other; and the evidence of a sale, admitted on the trial for the selling, is admissible on a subsequent trial for the unlawful keeping.” 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, Intox. Liq. § 442; State v. Klein, 78 Mo. 627;...