Jahnke v. State

• Decision Date: 18 March 1903
• Docket Number: 12,979
• Citation: 94 N.W. 158,68 Neb. 154
• Parties: AUGUST F. JAHNKE v. STATE OF NEBRASKA. [*]
• Court: Nebraska Supreme Court

94 N.W. 158

68 Neb. 154

AUGUST F. JAHNKE v. STATE OF NEBRASKA. ^[*]

No. 12,979

Supreme Court of Nebraska

March 18, 1903

ERROR to the district court for Box Butte county: WILLIAM H WESTOVER, DISTRICT JUDGE. Affirmed.

AFFIRMED.

Robert C. Noleman and Benjamin F. Gilman (on rehearing Francis G Hamer and Thomas F. Hamer), for plaintiff in error.

Frank N. Prout, Attorney General, Norris Brown and William B. Rose for the state.

OPINION

HOLCOMB, J.

The defendant, August Jahnke, was tried and convicted in the district court of Box Butte county upon an information filed by the county attorney charging him with murder in the first degree. In the verdict returned by the jury, imprisonment in the penitentiary for life was fixed as the punishment to be inflicted for the crime of which he was found guilty. The homicide was committed by shooting one Michael Sirck in the right side and back with a loaded shotgun, the shot from which penetrated his lungs, causing death within four to six hours thereafter. The gun at the time the load was discharged, was in the hands of one Oliver Olson. The prosecution by the state was conducted upon the theory that the homicide was committed by shooting as above stated by Olson, who fired the shot with felonious intent and in pursuance of a prearranged plan between the defendant and Olson; the defendant at the time being present, aiding, abetting, assisting, and procuring the commission of the crime, and by reason thereof was a principal in the transaction. The motive actuating the parties was to procure insurance in the sum of $ 4,000, which prior thereto had been procured on the life of the deceased, payable to his estate; the defendant Jahnke being the sole beneficiary under a will executed in his favor by the deceased at the time of procuring the life insurance policy, and as a part of the same transaction. The life insurance money, according to the testimony of Olson, was to be divided equally between the defendant and himself after the doctor's bill and funeral expenses had been paid. As a part of the prearranged plan, according to Olson's version of the affair, the shooting of the deceased and his death by that means was to be accomplished, and thereafter be reported and treated as having been occasioned by an accidental discharge of the shotgun. The defense of Jahnke was conducted on the theory that the shooting was in fact accidental, and that Olson's testimony to the contrary was manufactured by reason of influences and inducements exerted on and held out to him by the county attorney and the sheriff of the county and in the hope of receiving immunity for his participation in the crime. After the defendant's conviction, Olson pleaded guilty to murder in the second degree, which was accepted by the county attorney, and a sentence imposed by the court of twenty years' imprisonment in the penitentiary. The testimony of Olson disclosed that several prior attempts had been made to take the life of the deceased, all of which had proved unsuccessful, and that thereupon it was agreed between them that a shotgun should be procured and his death accomplished by shooting under the pretense that it was the result of an accident. The uncontradicted evidence goes to show that while the deceased, who was a bachelor, living alone, was sitting at the breakfast table at his home, the defendant being seated on the opposite side of the table talking to him, Olson came from an adjoining room through a partition door immediately to the right and to the rear of where the deceased was sitting, and that just as he passed through the door the charge in the gun was exploded, the shot striking the deceased in the right side or back near the spinal column, penetrating his lungs, from which his death soon resulted. The deceased at the time lived in the country some twelve miles from Alliance, the county seat of Box Butte county. The defendant and Olson had frequently stopped with him for meals and overnight when in that vicinity. The defendant, at the time of the homicide, was living at Alliance, but within a year or two prior thereto had lived on another farm or ranch in the neighborhood where deceased was living. Olson is a brother-in-law of the defendant. The morning preceding the homicide defendant, with his son, who was about eighteen years old, and Olson, drove from Alliance to the home of the deceased, where they remained over night. It was testified by Olson that the plan was to shoot the deceased on the same evening they arrived at his home, but because of the presence of a relative who visited him during the evening, these plans miscarried. During the night, says Olson, while he and the defendant were occupying the same bed in a room by themselves, it was agreed between them that they would undertake to accomplish their object on the following morning, and that the shooting at the time and in the manner narrated was the final consummation of the conspiracy they were engaged in.

The record which is presented for review by defendant is quite voluminous, and the petition in error contains near three hundred assignments of alleged errors, of which only those which are argued in brief of counsel will be considered. Some, even, of the assignments of error which are argued are not deemed of sufficient importance to be noticed and considered more than in a very brief way.

When called upon to answer the information filed against him, the defendant interposed a plea in abatement on the ground that there had been no preliminary examination of the offense of which he was informed against, such as is by law required. In the plea in abatement was set out in full all the proceedings had before the examining magistrate, including the testimony which had been introduced at such hearing. The county attorney filed a demurrer to this plea, which, upon consideration, was sustained by the court. The ruling on the demurrer is now assigned as error. The contention of the defendant is that while there was in form a preliminary inquiry to a limited degree, it was not such as is required by law, and that the evidence upon which the examining magistrate acted failed altogether to show that any crime had been committed; that the order of commitment on the evidence adduced was entirely unwarranted and without legal justification; and the district court therefore erred in holding, as it did in effect, that the defendant had been accorded a preliminary examination within the meaning of the law. The question directly presented to us, is what shall be the standard by which to determine whether a preliminary examination has been had such as will authorize a county attorney to proceed in the trial of a person accused of a felony, when such an examination has not been waived, and where at least a form of examination has been had, some evidence introduced, and a finding by the magistrate that a crime has been committed, and also that there is probable cause to believe the person charged guilty of its commission? It has frequently been held in this and in other jurisdictions that where prosecutions by information are allowed in the absence of a waiver by a defendant accused of crime of his right to a preliminary examination, he can not be put upon trial for the crime charged over his objections until such preliminary hearing has been accorded him and he held to await a trial in the district court, and that a plea in abatement is the proper method of determining whether or not such hearing has in fact been had or waived. White v. State, 28 Neb. 341, 44 N.W. 443; Coffield v. State, 44 Neb. 417, 62 N.W. 875; Latimer v. State, 55 Neb. 609, 70 Am. St. Rep. 403, 76 N.W. 207. In the case last cited it is said that the object of a preliminary examination before an examining magistrate is to ascertain whether the crime charged has been committed, and if it is found to have been, then whether there is probable cause to believe the accused committed it, and if such is found to be the case, to insure his appearance in the district court to answer the complaint by recognizing him to appear thereat, or, in default of recognizance, to commit the accused to jail until an information may be presented against him and he be required to answer for the crime charged. What the statute evidently contemplates is that when a person is charged with the commission of a felony, before he can be proceeded against by information he must be brought before an examining magistrate on such charge, and that the magistrate shall proceed to hear the complaint and examine such witnesses as are produced in support thereof or to controvert the same, and then exercise judgment or discretion of a judicial character, with which he is invested, in determining whether from the evidence adduced, the accused should be held to appear for trial in the district court or should be discharged for want of probable cause, or because it is not made to appear that a crime has been committed. It was not, we apprehend, the intention of the statute that by a plea in abatement errors in the judgment of the examining magistrate should be corrected, or that the evidence introduced should be weighed for the purpose of determining its sufficiency, as might be the case by a reviewing court when the questions involved are those solely of guilt or innocence of the accused.

When the quantity or sufficiency of the evidence to justify the holding of a person to answer for a crime is called in question, as in the case at bar, by a plea in abatement, the only question to be considered is with reference to the powers of the magistrate which are called into action in the determination of what shall be the result of such hearing. If he is compelled to act judicially, and to determine as a judicial question the...