Miller v. State

• Decision Date: 30 April 1890
• Citation: 45 N.W. 451,29 Neb. 437
• Parties: MILLER v. STATE.
• Court: Nebraska Supreme Court

29 Neb. 437

45 N.W. 451

MILLER

v.STATE.

Supreme Court of Nebraska.

April 30, 1890.

Syllabus by the Court.

1. A prosecution for murder may be by information filed by the public prosecutor.

2. The information in the case held sufficient to sustain a conviction of murder in the first degree.

3. Where a motion for a continuance of a criminal case made by the accused, on account of the absence of a witness, is supported by affidavits stating what the witness would testify to if present, and it appearing that such testimony is material, that reasonable diligence has been used to procure the same, and that there is a probability of obtaining such testimony by the next term of court, held, the continuance should be granted.

4. Counter-affidavits cannot be used on the hearing of such a motion.

5. The names of additional witnesses may be, in the discretion of the trial court, indorsed on an information after the filing thereof, and before the day of trial. Where the name of a witness is indorsed on the day of trial, but not called and examined, error cannot be based thereon.

6. It is not error to hear arguments, in the absence of the accused, on motions and demurrers, before the commencement of the trial.

7. Where a person called to serve as a juror in a criminal case discloses on his voir dire that he has an opinion as to the guilt or innocence of the accused, based on rumor and the reading of newspaper accounts of the alleged crime, which will require evidence to remove, a challenge for cause should be sustained, even though he states that he thinks he could render an impartial verdict under the law and evidence. Curry v. State, 4 Neb. 548.

8. No prejudicial error was committed in refusing the defendant's request on the presumption of innocence, as the law on that subject had already been correctly stated in the instructions given.

Error to district court, Gage county; BROADY, Judge.A. Hazlett and R. S. Bibb, for plaintiff in error.

William Leese, Atty. Gen., for the State.

NORVAL, J.

At the June term, 1889, of the district court of Gage county, the plaintiff in error was convicted of murder in the first degree, and was sentenced to be hanged. The petition in error contains, 58 assignments of error, of which 29 are relied upon in the brief. In our view, it will not be necessary to notice all of these. Exception is taken to the overruling of the demurrer to the information. No defect is pointed out, and we are satisfied that none exists It clearly and concisely states all the facts necessary to charge the crime of murder in the first degree. The intent is specifically alleged. A general demurrer to the defendant's plea in abatement was sustained, and an exception entered upon the record. The plea assigns three reasons why the prosecution should be abated: First. Because no indictment has been found against the defendant by any grand jury of Gage county; second, because the right of trial by jury guarantied by the constitution of the state of Nebraska has been abridged by the failure of a proper presentment of the case to a grand jury; third, because the court has no jurisdiction to try the defendant on the information filed in the action.

The authority to prosecute criminal cases on information filed by the public prosecutor cannot well be questioned. This power is expressly conferred by chapter 54 of the Criminal Code. Of course, unless the accused is a fugitive from justice, an information cannot be filed until the accused has had a preliminary examination, or he has waived his right thereto. It is not claimed that there has been no examination in this case, or, at least, that it was not waived. The power of the legislature to provide for prosecutions by information is expressly conferred by the last clause of section 10 of the bill of rights, which declares “that the legislature may, by law, provide for holding persons to answer for criminal offenses on information of a public prosecutor; and may, by law, abolish, limit, change, amend, or otherwise regulate the grand jury system.” The prosecution by information does not in any manner abridge the right of trial by jury, guarantied by the constitution. The examination by a grand jury of a criminal offense is in no sense a trial. The demurrer to the plea in abatement was therefore rightly sustaind.

It is urged that the trial court erred in hearing the motion to quash the information, the demurrer to the information, the plea in abatement, and the motion for a continuance, in the absence of the defendant from the court-room. Section 464 of the Criminal Code provides that “no person indicted for a felony shall be tried, unless personally present during the trial.” Section 11 of the bill of rights provides: “In all criminal prosecutions, the accused shall have the right to appear and defend, in person or by counsel,” etc. We do not believe that either of the above-quoted sections has reference to the presentation by counsel of questions of law to the court on interlocutory proceedings prior to the commencement of the selection of the jury, but rather that the accused shall be present during the trial of the issue of fact raised by his plea of not guilty. The hearing of motions and demurrers prior to choosing the jury is no part of the trial. This construction is not without precedents to sustain it. Epps v. State, 102 Ind. 542, 1 N. E. Rep. 491, was a prosecution and conviction for murder. A motion to quash the indictment was partly argued in the absence of the defendant. The statute of that state provides that “no person prosecuted for any offense punishable by death, or by confinement in the stateprison or county jail, shall be tried, unless personally present during the trial.” The court in that case held that the section had no relation to motions in a cause not connected with the trial. See Territory v. Gay, 2 Dak. 125, 2 N. W. Rep. 477. It was held in Boswell v. Com., 20 Grat. 860, under a statute which provides that a person tried for a felony shall be personally present during the trial, that any order may be made in the prisoner's absence, before his arraignment. It has been held that the accused has no right to be personally present at the hearing of a motion for a new trial. People v. Ormsly, 48 Mich. 494, 12 N. W. Rep. 671;Com. v. Costello, 121 Mass. 371. We conclude that there was no error committed in hearing, in the absence of the defendant, these motions and demurrers.

The defendant, before the commencement of the trial, presented to the court an application for a continuance supported by affidavits. The state having filed several affidavits in opposition to the motion, the defendant asked that they be stricken from the files, which request was denied, and the counter-affidavits were considered on the hearing of the motion for a continuance. The right of the state to make a counter-showing on the hearing of such a motion has been more than once considered by this court, and such right has been invariably denied. In passing upon the qustion in the case of Hair v. State, 14 Neb. 503, 16 N. W. Rep. 829, this language is used: “The facts stated in the affidavit, for the purposes of the motion, will be taken as true, and, if sufficient grounds are shown, and reasonable diligence has been used by the party filing the motion, a continuance should be granted. The court will not permit to be filed nor consider counter-affidavits in such case, because it will not in that proceeding permit an issue to be raised as to the truthfulness of the affidavit.” To the same effect are Williams v. State, 6 Neb. 334;Johnson v. Dinsmore, 11 Neb. 391, 9 N. W. Rep. 558; and Gandy v. State, (Neb.) 43 N. W. Rep. 747.

It is contended by the state that the counter-affidavits filed by it raise no issue as to the truthfulness of the showing made by the defendant. If not, we fail to see what bearing they could have upon the determination of the application for a continuance. True, they do not contradict the showing of the defendant as to what the absent witness, if present, would testify to, yet they seek to raise an issue as to the probability of the defendant being able to procure the testimony of the absent witness, and to that extent, at least, the defendant's showing is sought to be weakened. If the defendant's affidavit can be contradicted in...