Harris v. State

• Decision Date: 15 November 1888
• Citation: 24 Neb. 803,40 N.W. 317
• Parties: HARRIS v. STATE.
• Court: Nebraska Supreme Court

24 Neb. 803

40 N.W. 317

HARRIS

v.STATE.

Supreme Court of Nebraska.

November 15, 1888.

Syllabus by the Court.

Courts of general jurisdiction have the authority to change, correct, revise, and vacate their own judgments, at any time during the term at which they were rendered, and before rights have become vested thereunder.

While the law requires a motion for a new trial to be filed within three days after the rendition of a verdict, and during the term at which the verdict was returned, yet it is not necessary that the motion should be decided within three days, nor is there anything in the law of this state which would prohibit the filing of affidavits in support of such motion at any time before its submission to the court.

Where, in a prosecution under section 14 of the Criminal Code for an assault with intent to commit rape, the person upon whom the assault is alleged to have been made having been shown to be a female child of tender years, and after the cause was submitted to the jury one of the jurors procured a copy of the Compiled Statutes, and took the same into the jury-room, and read therefrom section 12 of the Criminal Code, and especially the latter clause thereof, which refers to the carnal knowledge or abuse of a female child under the age of 15 years, and also read from chapter 46 of the Criminal Code, which provides for motions for new trials, it was held that such misconduct was sufficient to vitiate the verdict.¹

Affidavits may be received for the purpose of avoiding a verdict to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself; as where a verdict for damages is ascertained by aggregation and average without subsequent ratification, or where it is made to depend upon chance, or where a part of the jury become so intoxicated as to destroy their ability to deliberate and exercise their reason and judgment, or where witnesses are surreptitiously called before the jury, and permitted to detail the principal facts, or any other matter, concerning which all or any considerable portion of the jury may testify with equal knowledge, by having seen or heard the misconduct which is alleged to have occurred.¹

Error to district court, Dodge county; MARSHALL, Judge.

William F. Harris was indicted for assault with intent to commit rape. He was found guilty, and sentence of conviction was entered on the verdict. He brings error.J. E. Frick and R. J. Stinson, for plaintiff in error.

The Attorney General, for the State.

REESE, C. J.

Plaintiff in error was indicted by the grand jury of Dodge county for the crime of assault with intent to commit rape upon Catherine Moaker, a female child. After a plea of not guilty, a trial was had, which resulted in a verdict of guilty as charged in the indictment. This verdict was returned on the 6th day of February, 1888. A motion for a new trial was filed on the 9th day of the same month, and on the same day an amended or substituted motion was filed, which we here copy: “Comes now the defendant in the above-entitled cause, and moves the court for a new trial in said action, and to set aside the verdict heretofore returned in said cause, and for cause thereof shows: (1) That the verdict is not sustained by sufficient evidence. (2) That the verdict is contrary to the evidence. (3) That the verdict is contrary to law. (4) Irregularity in the proceedings of the court, and abuse of discretion by the court, by which the defendant was prevented from having a fair and impartial trial, as appears from the affidavit of William F. Harris and others attached hereto, and made a part hereof. (5) Misconduct of the jury in deliberating upon and the manner of agreeing upon a verdict, as appears from the affidavits of the several jurors hereto attached and made a part hereof.” On the 11th day of February the motion was overruled, and judgment and sentence of conviction entered on the verdict. Upon the hearing of the motion for a new trial no evidence was offered in support of the fifth assignment in the motion. On the 14th day of February plaintiff gave notice to the prosecuting attorney that on the 18th day of the same month, and during the same term, he would apply to the district court for an order setting aside the judgment, and granting a new trial, on affidavits to be on file on the 16th. On the day set, to-wit, the 18th, the motion was called for hearing, upon the affidavits of jurors and others impeaching the verdict. The prosecutor then moved to strike from the files the affidavits of the jurors. Affidavits of other jurors having been filed by the state, plaintiff in error objected to the reading of certain parts thereof. He also moved for leave to file affidavits in rebuttal, to which the prosecuting attorney objected. These motions and objections were all submitted to the court, which, upon consideration, overruled all except the motion of plaintiff in error for leave to file affidavits in rebuttal, which was sustained, and to the adverse rulings of the court both plaintiff in error and the prosecution excepted. Plaintiff in error brings the cause to this court by proceedings in error, assigning for such error substantially the following grounds: First, the verdict is not sustained by sufficient evidence; second, the verdict is contrary to law; third, the court erred in refusing to set aside the verdict of the jury, and grant a new trial, upon the ground of the misconduct of the jury; fourth, the court erred in overruling plaintiff's objection to the consideration of the affidavits of jurors in support of the verdict; fifth, the court erred in not vacating the judgment, and granting a new trial.

It is insisted by the defendant in error that the court had no power or authority to vacate its judgment, and hence there could be no error in refusing to do so; and in support of this Ex parte Holmes, 21 Neb. 324, 32 N. W. Rep. 69, is cited. That case was where the motion for a new trial was not filed until the next term of court after the one at which the judgment had been rendered, and some six months after Holmes had been taken to the penitentiary in execution of the sentence. In this case, all the proceedings were had during the term at which plaintiff was tried. The authority of courts of record over their own judgments, during the term at which they were rendered, has generally been considered ample for the purpose of correcting errors, or of preventing a failure of justice in any other respect. Com. v. Weymouth, 2 Allen, 144;King v. Price, 6 East, 323; Burnside v. Ennis, 43 Ind. 411;Lee v. State, 32 Ohio St. 113;U. S. v. Harmison, 3 Sawy. 556. There is nothing in the statute of this state, governing motions for new trials, which requires a decision thereon at or within any particular time. Had judgment not been rendered prior to the 18th day of February, we know no rule which would have prevented plaintiff in error from presenting evidence in support of his motion at any time before the submission thereof, even though the three days in which the motion might be filed had expired. If this is...