Maher v. State

• Decision Date: 17 March 1944
• Docket Number: 31647.
• Citation: 13 N.W.2d 641,144 Neb. 463
• Parties: MAHER v. STATE.
• Court: Nebraska Supreme Court

13 N.W.2d 641

144 Neb. 463

MAHER v. STATE.

No. 31647.

Supreme Court of Nebraska

March 17, 1944

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Syllabus by the Court.

1. An assignment in a petition in error "that the court erred in overruling the motion for a new trial" is not required. If the particular errors complained of are properly set forth in the motion for new trial as by statute provided and the assignments in the petition in error are based thereon, then this court has jurisdiction to review the errors complained of. James v. Higginbotham, 60 Neb. 203, 82 N.W. 625, is overruled.

2. The provisions of the Constitution relating to titles are to be liberally construed, and so construed as to admit of the insertion in a legislative act of all provisions which though not specifically expressed in the titles, are comprehended within the objects and purposes of the act as expressed in its title; and to admit all provisions which are germane, and not foreign, to the provisions of the act as expressed in its title. Held, that all offenses included in section 4 of Senate File 236 as passed by the 1935 legislature, c. 60, now being section 28-5,101, Comp.St.Supp.1941, are within the objects and purposes of the act as expressed in the title and germane thereto and that the same are defined with sufficient certainty and clearness.

3. On a challenge to the array or motion to quash the venire, it will be presumed, in the absence of evidence to the contrary, that the officers charged with the duty of selecting, drawing, and summoning the jury have acted faithfully and according to law, and the burden of showing the contrary is upon the challenging party.

4. When the accused appears in person and by counsel and goes to trial before a jury regularly impaneled and sworn, he shall be deemed to have waived arraignment and a plea of not guilty to have been pleaded.

5. The transcript imports absolute verity, and cannot be impeached. If incorrect, or if it fails to speak the truth, the correction must be made in the district court and not here.

6. An application for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be held erroneous, unless an abuse of discretion is disclosed by the record.

7. The legislature of our state has interpreted the Constitution on the matter of a speedy trial by fixing what, in certain cases and under certain conditions, is to be regarded as a maximum time within which a defendant must be tried. The interpretation of this constitutional provision is for the court, but since the time fixed by the legislature is not unreasonable, we adopt it as our own. But the legislature has not undertaken to fix any minimum time in such matters. What is a fair and reasonable time in each particular case is always in the discretion of the court.

8. The corpus delicti and the guilt of the defendant in an arson case may be established by circumstantial evidence. Held, evidence sufficient to establish the corpus delicti and guilt of the defendant under the circumstantial evidence rule.

9. It is the duty of the court, with or without request, to instruct the jury as to the law of the case.

10. The approved journal entry of a judgment is indisputable evidence of what the judgment was.

11. A judgment of a court is valid and effective when it is declared and announced by the judge, although it may not be reduced to writing until afterwards.

12. It is the duty of the court to endeavor to surround the trial with an atmosphere of fairness, undisturbed by prejudice, passion, or ill-will.

Grenville P. North, of Omaha, for plaintiff in error.

Walter R. Johnson, Atty. Gen., H. Emerson Kokjer, Deputy Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE Justice.

Information was filed in the district court for Douglas county charging William Maher and Tony Scavio with arson in the fourth degree. Upon application of William Maher, the plaintiff in error, he was granted a separate trial. Trial being had he was convicted thereof. In his petition in error, by which he brings his conviction to this court for review, he assigns a very large number of errors as grounds for reversal. For the purpose of this opinion, we will follow the rule as announced in Mason v. State, 132 Neb. 7, 270 N.W. 661, 662: "Errors assigned but not argued will be considered as waived."

For the purpose of this opinion the plaintiff in error will be referred to as the defendant and the defendant in error as the state.

The first question presented by this appeal is whether or not the errors relied upon by the defendant are properly here for consideration. The defendant failed to assign in his petition in error that the lower court erred in overruling his motion for new trial. In Achenbach v. Pollock, 64 Neb. 436, 90 N.W. 304, we held: "A judgment will not be reversed for errors which are required to be assigned on a motion for a new trial unless it is alleged in the petition in error, and shown by the record, that the court erred in overruling such motion." See, also, Gandy v. Cummins, 64 Neb. 312, 89 N.W. 777; James v. Higginbotham, 60 Neb. 203, 82 N.W. 625. In Waxham v. Fink, 86 Neb. 180, 125 N.W. 145, 28 L.R.A.,N.S., 367, 21 Ann.Cas. 301, we stated: "Under the former practice it was held, perhaps not necessarily, that the petition in error in this court must contain the assignment that 'the court erred in overruling the motion for a new trial."' In many of the decisions the reason for this rule is based upon the theory of waiver. This would seem to have little merit for by the appeal itself the appellant shows his dissatisfaction with the ruling on the motion and his attempt to be relieved thereof. As stated in Reese v. Fife, Mo.Sup., 279 S.W. 415, 424: "The appellant has preserved in his motion for new trial the errors of which he complains. To hold that, by failing to also assign error in overruling the motion, appellant has waived the errors preserved for review, would seem to be highly technical. Such an assignment would be superfluous." See, also, Armout v. Pennsylvania R. Co., 353 Ill. 575, 187 N.E. 532. We think the better rule to be that, where the motion for new trial sets forth the errors of which the appellant complains in the manner prescribed by our statute and the assignments in the petition in error are based thereon, then the case is before this court for review and it is not necessary to assign in the petition in error that the trial court erred in overruling the motion for new trial. Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369, 70 N.W. 955. Therefore, James v. Higginbotham, supra, and all other cases in so far as they conflict with the rule herein announced are overruled.

The defendant further contends that section 28-5,101, Comp.St.Supp.1941, is unconstitutional and therefore void. The basis of this contention is that the act contains more than one subject, that the subject is not clearly expressed in the title, and that it lacks certainty and clearness. Section 14, art. III of our Constitution provides in part: "No bill shall contain more than one subject, and the same shall be clearly expressed in the title." The information under which the defendant was convicted of fourth degree arson is in the language of section 28-5,101, supra, which statute is as follows: "Any person who wilfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of arson in the fourth degree and upon conviction thereof be sentenced to the Penitentiary for not less than one nor more than two years or fined not to exceed One Thousand Dollars. The placing or distributing of any inflammable, explosive or combustible material or substance, or any device in any building or property mentioned in the foregoing sections in an arrangement or preparation with intent to eventually wilfully and maliciously set fire to or burn same, or to procure the setting fire to or burning of same shall, for the purpose of this act constitute an attempt to burn such building or property." This is section 4 of Senate File No. 236 as passed by the 1935 session of the legislature appearing as chapter 60 of the 1935 Session Laws. The title to this act is as follows: "An Act relating to crimes and punishments; to define the crime of arson in its various degrees; to provide penalties therefor; and to repeal Sections 28-501, 28-502, 28-503, 28-504 and 28-505, Compiled Statutes of Nebraska, 1929." This act of the legislature includes the various degrees of arson and attempts thereat together with those who aid, counsel or procure the same to be done, including when the same is done to injure or defraud an insurer.

In the construction of this constitutional provision, we stated in Lennox v. Housing Authority of City of Omaha, 137 Neb. 582 290 N.W. 451, 460, 291 N.W. 100: "The constitutional provision does not require that the title be a synopsis of the law. The purpose of the constitutional inhibition was to prevent surreptitious legislation by advising legislators of the nature of the measures they are called upon to support or oppose. If by a fair and reasonable construction the title calls attention to the subject-matter of the bill, it may be said that the object is expressed in the title." And as stated in Pandolfo v. State, 120 Neb. 616, 234 N.W. 483, 484: "The provisions of the Constitution relating to titles are to be 'liberally construed, and so construed as to admit of the...