Koenigstein v. State

• Decision Date: 05 May 1917
• Docket Number: 19418
• Citation: 162 N.W. 879,101 Neb. 229
• Parties: ARTHUR J. KOENIGSTEIN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

162 N.W. 879

101 Neb. 229

ARTHUR J. KOENIGSTEIN v. STATE OF NEBRASKA

No. 19418

Supreme Court of Nebraska

May 5, 1917

ERROR to the district court for Madison county: ANSON A. WELCH JUDGE. Reversed.

REVERSED.

Reese Reese & Stout, H. F. Barnhart and Jack Koenigstein, for plaintiff in error.

Willis E. Reed, Attorney General, Charles S. Roe and William L Dowling, contra.

SEDGWICK J. LETTON and ROSE, JJ., dissent.

OPINION

SEDGWICK, J.

The defendant was found guilty of accepting a bribe while acting as county attorney of Madison county, and was sentenced to imprisonment in the penitentiary from one to five years. He has brought the case to this court for review.

The first questions presented are as to the impaneling of the jury. It appears that there were two indictments pending against the defendant at the same time; both charging him with accepting bribes from respective keepers of disorderly houses in or near the town of Norfolk. The defendant was tried upon one of these indictments and found not guilty, and at the same term the case at bar was about to be tried, and the prosecuting attorney filed a motion "to discharge the regular panel of jurors summoned for the special September, 1915, term of said court, and to enter an order causing a special venire of jurors to be called to try the above entitled cause." It appears that upon the former trial of the defendant at the same term of court it was contended, and there was some evidence indicating, that while he was county attorney he had required each one of the disorderly houses in the town to pay him a regular monthly bonus, and in consideration of such payment had refrained from prosecuting them. The indictment indicated that the same contention would be made in the case at bar. The jurors of the regular panel had all heard the evidence in the case that had been tried, eleven of them were upon the jury that tried the case, and the remainder of the members of the panel were in the courtroom more or less at the time of the trial and heard the evidence and argument of counsel. Upon these facts the court discharged this regular panel, and directed the sheriff to "summon without delay twenty-four (24) good and lawful men, having the qualifications of jurors, to fill and complete the panel." This was done immediately, and the defendant filed a motion and affidavit objecting to the jurors summoned by the sheriff. In an affidavit filed by him he stated "that the regular panel and bystanders are incompetent, because of having heard the evidence, or a part thereof, in the former trial, to sit as jurors in this cause." This proceeding of the court in quashing the panel was not authorized by section 9106, Rev. St. 1913. That section applies when two or more persons are charged in the same indictment or information, and one of them so charged has had a separate trial. If then the court is "satisfied, by reason of the same evidence being required in the further trial of parties to the same indictment or information, that the regular panel and bystanders are incompetent, because of having heard the evidence, to sit in further causes in the same indictment or information," then the court may require the clerk to prepare a list of 60 electors of the county, and the jury is to be selected from this list. This method of proceeding was not followed, the court understanding that the section did not apply in this case, but the motion of the prosecuting attorney to quash the panel was sustained apparently because the court found that each and every juror upon the panel was disqualified to sit, having already heard the evidence in the case, and of course having heard the public discussion that would follow after the first trial. Under these circumstances, if the jurors of the regular panel had been severally examined on their voir dire, none of them would have been allowed to sit in this case, and therefore excluding them under this general order was not erroneous.

The order of the court directing the sheriff to summon 24 jurors was authorized by section 8143, Rev. St. 1913: "Whenever at any general or special term, or at any period of a term for any cause there is no panel of grand jurors or petit jurors, or the panel is not complete, said court may order the sheriff, deputy sheriff, or coroner to summon without delay good and lawful men, having the qualifications of jurors." Under this order of the court the sheriff called 24 jurors, and the defendant then filed an objection "to the panel of petit jurors summoned for the trial of this cause by the sheriff of Madison county." The grounds of this objection alleged by the defendant were because a list of persons from which this jury was drawn was composed of persons residing in one particular locality of the county, and none of the jurors were selected "from residents of Norfolk precinct which contains at least one-third of the population of the county," or from six other specified precincts of the county. "The prisoner has the right to insist that the list of persons from which the panel is drawn be filled in due proportion from all of the precincts within the trial district, and not from a part only." State v. Page, 12 Neb. 386. In the same case it is said that, if the county commissioners in preparing the regular jury list overlooked a precinct containing one-third of the whole number of persons in the trial district qualified to serve, the panel would be illegal, but in such case "the court has ample authority to provide a lawful jury under section 664 (Rev. St. 1913, sec. 8143)." Barney v. State, 49 Neb. 515, 68 N.W. 636. Under section 664 the sheriff summons "good and lawful men, having the qualifications of jurors." These are to be called from the body of the county, and the sheriff is not required to apportion them equally to all parts of the county. This point was determined in Welsh v. State, 60 Neb. 101, 82 N.W. 368, in which case the court said: "In cases where a jury is drawn in the manner prescribed by said section 658 et seq. of the Code of Civil Procedure the provisions thereof must be observed. That they are mandatory we do not doubt, particularly those provisions which require that the panel must consist of persons drawn, as nearly as may be, from all portions of the county, in proportion to their population, and this we understand to be the rule laid down in most of the cases of this court cited by counsel for defendant in support of the proposition that the panel in this case was illegal. But no such requirement is prescribed by section 664, hence it was unnecessary that the jury in this case be so selected." Such a method of selecting jurors to try a particular case is exceptional and should not be lightly resorted to. It was said in the case last cited: "The authority conferred by this section should be sparingly exercised and exigencies should not be purposely created by the courts for its exercise. This defendant suffered no injustice through such proceeding, and the lower court must be sustained in its action."

The next objection presented in the brief is: "The court permitted the introduction of evidence of the identical acts complained of in the former charge (trial), which had been found not true, and refused to permit the introduction of evidence of such acquittal." The theory of the prosecution was that the defendant as county attorney adopted a plan or system of requiring each and all of the disorderly houses in the town to pay him a specified sum to prevent prosecutions. The first witness introduced by the state testified that he was a driver of a taxicab, engaged in carrying passengers from place to place in the town for hire and that he, at the defendant's request, took him to each of the disorderly houses in the town, and that afterwards the witness received money from each of the keepers of these houses at or about the first of each month and delivered the money to this defendant. It appears to be seriously contended that the indictment is not sufficient to admit this class of testimony, but there seems to be no ground for this contention. In Guthrie v. State, 16 Neb. 667, 21 N.W. 455, several questions were considered. The indictment in that case alleged the receipt of $ 300 as a bribe, and alleged that the $ 300 was paid by one Branch "and other persons whose names are to the jurors unknown." The proof showed that it was paid by Branch alone, and it was held that there was no fatal variance between the allegation and the proof. In the case at bar the allegation is that $ 75 was paid by Nannie Meyers and Riley McLimans and there was proof that the $ 75 was so paid. The indictment continued, stating how and for what purpose the $ 75 was paid, and in that regard alleges that it was paid for the purpose of permitting Nannie Meyers "and other persons to the grand jurors unknown" to carry on unlawful business. The proof tends to establish that the $ 75 charged in the first count of the indictment as paid by Nannie Meyers and McLimans was paid in pursuance to a general plan and system whereby similar amounts were to be paid by other persons and all persons so paying were to be protected from prosecution. Under the opinion in Guthrie v. State, supra, this proof would have been admissible under the general allegation of payment by Nannie Meyers and Riley McLimans. The court said: "It is clearly shown that the agreement was a continuing one, and contemplated a system of payments to be made in the future, and for which the same course was to be pursued by plaintiff in error as for the $ 300. It was known by plaintiff in error when Branch received money, and no gambling house was molested after its share of the money had been paid. He was fully advised of what occurred in the workings of the plans and...