Miller v. State
| Citation | 111 N.W. 637,78 Neb. 645 |
| Decision Date | 04 April 1907 |
| Docket Number | 14,752 |
| Parties | AUGUST H. MILLER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Stanton county: GUY T. GRAVES JUDGE. Affirmed as modified.
AFFIRMED.
John A Ehrhardt and A. R. Oleson, for plaintiff in error.
William T. Thompson, Attorney General, and Grant G. Martin, contra.
August H. Miller, hereafter called the defendant, was tried in the district court for Stanton county on an information containing five counts. The first of said counts charged him with a violation of section 48 of the criminal code, by wilfully, maliciously and forcibly breaking and entering into the dwelling house of one Frederick Hoheneke, with intent to kill said Hoheneke, Annie Hoheneke and Mary Miller, then and there being. By the second count he was charged with a violation of the same section and in the same manner, with the additional allegation of a felonious assault on the persons above named. By the third count he was charged with violating section 16 of the criminal code, by maliciously shooting Frederick Hoheneke, with intent to kill. By the fourth count he was charged with shooting Mary Miller; and by the fifth count he was charged with shooting one Annie Hoheneke, with a like intent. At the first seasonable opportunity, the defendant filed a motion to quash the information, because five separate and different crimes were charged against him therein, and that said offenses were improperly joined. This motion was overruled, to which the defendant excepted. A motion was then filed to require the state to elect on which count of the information it would proceed to trial. The court overruled this motion, and the defendant again noted an exception. He thereupon demanded a separate trial upon each of the several counts, which demand was refused. He then entered his plea of not guilty, and was placed on trial upon all of the counts contained in the information. It appears that after the state had produced its evidence the court withdrew the first two counts from the consideration of the jury, and at the close of all the evidence the defendant moved the court to require the prosecutor to elect upon which one of the three remaining counts he would rely for a conviction. His motion was overruled, his exception noted, and thereafter the jury returned a verdict of guilty of the charge contained in the fourth count of the information. On this verdict the defendant was sentenced to the state penitentiary for a term of fifteen years, and to reverse that judgment he prosecutes error.
By his first two assignments the defendant alleges that the district court erred in overruling his motion to quash the information, and in refusing to require the state to elect as to which count it would rely on for a conviction. Counsel have presented these questions with much force, and for convenience they will be considered together. We think the rule is well established, and quite universal, that where the indictment or information charges the defendant with the commission of several distinct and separate crimes, it should be quashed, or the state should be required to elect upon which count or charge it will rely for a conviction. In offenses of a high grade, but a single issue will be permitted to go to the jury, and the court will require the prosecutor to elect, except in those cases where the offenses are so blended that it is for the jury to determine which count, if any, the evidence applies to, as in cases of murder to determine the degree of the crime. Maxwell, Criminal Procedure (2d ed.), 54. In Kane v. People, 8 Wend. (N.Y.) 203, the court said: "In cases of felony, where two or more distinct and separate offenses are contained in the same indictment, it may be quashed, or the prosecutor compelled to elect upon which charge he will proceed; but such election will not be required to be made where several counts are inserted in an indictment solely for the purpose of meeting the evidence as it may transpire on the trial, the charges being substantially for the same offense." The tendency of modern criminal procedure is to simplify matters of practice as much as possible, consistent with preserving to the accused all of his substantial rights; and so it is quite universally held that it is a matter for the exercise of a sound discretion by the trial court as to whether the prosecutor should be allowed to join several different offenses in different counts in the information; but, if such joinder is permitted, it then becomes the duty of the court, where called upon to do so, to require the prosecutor to elect upon which one of the several charges or counts he will rely for a conviction. State v. Lawrence, 19 Neb. 307, 27 N.W. 126; Wendell v. State, 46 Neb. 823; People v. Rohrer, 100 Mich. 126, 58 N.W. 661. In a note to Ben v. State, 58 Am. Dec. 234 (22 Ala. 9), it is said there is no reason why any number of counts for any number or kind of offenses may not be joined in the same indictment, where not otherwise provided by statute; but the practice of uniting several counts in an indictment would obviously lead to great oppression, if not controlled by a wise judicial discretion. And this discretion is universally conceded to the court before which a criminal cause is tried, since it is clear that if the prosecution were permitted to heap up charges against a prisoner in the same indictment, and try all before the same jury, it might not only overwhelm him with confusion in his defense, but break him down with a weight of obloquy before he had an opportunity to defend. Again, the attention of the jury might be so distracted by the multiplicity of charges, and by...
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