Nichols v. State

• Decision Date: 08 December 1922
• Docket Number: 22571
• Citation: 191 N.W. 333,109 Neb. 335
• Parties: CHARLES NICHOLS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

191 N.W. 333

109 Neb. 335

CHARLES NICHOLS v. STATE OF NEBRASKA

No. 22571

Supreme Court of Nebraska

December 8, 1922

ERROR to the district court for Cheyenne county: J. LEONARD TEWELL JUDGE. Affirmed: Sentence reduced.

AFFIRMED.

J. E Willits, for plaintiff in error.

Clarence A. Davis, Attorney General, and C. L. Dort, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, ALDRICH, FLANSBURG and DAY, JJ., REDICK and SHEPHERD, District Judges.

OPINION

ROSE, J.

In a prosecution by the state in the district court for Cheyenne county, Charles Nichols, defendant, was convicted of murder in the first degree and for that felony was sentenced to suffer the penalty of death. As plaintiff in error he presents for review the record of his conviction.

The first assignment of error challenges the overruling of a plea to discharge defendant on the ground of delay in the filing of the information. A statutory provision authorized a recognizance requiring accused to appear forthwith before the district court, if in session. Laws 1915, ch. 162. This however, applied to a bailable offense, and not necessarily to a charge of murder in the first degree. Another statutory provision declares:

"Any person held in jail charged with an indictable offense shall be discharged if he be not indicted at the term of court at which he is held to answer." Comp. St. 1922, sec. 10044.

This applies to prosecutions by information also. Defendant was not entitled to a discharge. He shot and killed Emma Carow, June 17, 1921. The complaint charging him with murder in the first degree was filed with the county judge as an examining magistrate June 21, 1921. Defendant was arraigned the same day and pleaded not guilty. He waived preliminary examination and was committed to prison without bail "for his appearance before the next jury term of the district court," not at the April term, which convened April 25, 1921, and adjourned July 25, 1921. The jury for the April term had been excused May 14, 1921, prior to the homicide. The transcript of the preliminary proceedings before the examining magistrate was filed in the district court June 23, 1921. The next regular or October jury term convened October 17, 1921, and adjourned December 31, 1921. This is the term at which defendant was "held to answer." The information was filed in the district court October 17, 1921, during the term at which defendant was required to appear, and the trial began October 20, 1921, and lasted three days. The sentence was pronounced October 24, 1921. Under the circumstances the committing magistrate was not required to bind defendant over to the April term. He was properly "held to answer" at the next or October term. The information was filed at the beginning thereof within the time limited by law. There was clearly no error in overruling the plea to discharge defendant without a trial.

The next assignment of error is based on the overruling of a plea in abatement. It is contended that the prosecution should have been abated on the ground of a variance between the complaint before the examining magistrate and the information filed in the district court. The import of the argument under this head is that the preliminary complaint charged that defendant assaulted Emma Carow with the intention of killing himself, while the information on which he was tried accused him of making the assault with intent to murder her; the deduction being that, on the latter charge, there was no preliminary hearing or waiver thereof, or opportunity to plead thereto before the examining magistrate, and that therefore the plea in abatement should have been sustained. This is a technical point without merit. It grows out of an obvious reference in a single place in the preliminary complaint to the accused instead of the victim of the homicide. Both the original complaint before the examining magistrate and the information subsequently filed in the district court charge defendant with murder in the first degree. The inaccuracy of the reference was perfectly plain on the face of the complaint and did not eliminate a material fact or mislead or prejudice defendant in the slightest degree.

Instead of a short form, charging the felony in simple and direct language without unnecessary details, repetitions or other superfluous matter, the county attorney felt called upon to use a form long sanctioned by the judiciary in attempting to observe portions of the English common law adopted by the legislature of Nebraska. The information, though valid and sanctioned by precedent, is not in a form suited to present conditions. It is as follows:

"In the District Court of Cheyenne County, Nebraska.

"The State of Nebraska, Plaintiff, vs. "Charles Nichols, Defendant, Information.

"Now, in this October, 1921, regular Term of the District Court, of Cheyenne County, Nebraska, duly convened herein, on the 17 day of October, in the year of our Lord, One Thousand Nine Hundred Twenty-one, comes into Court, Allen E. Warren, the duly elected, qualified and acting County Attorney of Cheyenne County, Nebraska, and for and in behalf of and in the name of the State of Nebraska, gives the Court to understand and be informed, that Charles Nichols, on or about the 17 day of June, 1921, in the County of Cheyenne and the State of Nebraska, aforesaid, then and there being, in and upon one Emma Carow, then and there being, unlawfully, wilfully, purposely, feloniously and of his deliberate and premeditated malice, did make an assault, with the intent, her, the said Emma Carow, unlawfully, purposely and of his deliberate and premeditated malice, to kill and murder, and that the said Charles Nichols, a certain pistol, commonly called a 'revolver,' then and there loaded and charged with gunpowder and divers leaden bullets, which said pistol, commonly called a 'revolver,' he, the said Charles Nichols, in his hand or hands, then and there had and held, then and there, unlawfully, wilfully, purposely, feloniously and of his deliberate and premeditated malice, did discharge and shoot off, to, at, against and upon, the said Emma Carow and that the said Charles Nichols, with the leaden bullets, aforesaid, out of the pistol, aforesaid, commonly called a 'revolver,' then and there, by force of the gunpowder, aforesaid, by the said Charles Nichols, discharged and shot off, as aforesaid, then and there, unlawfully, purposely, feloniously and of his deliberate and premeditated malice, did strike, penetrate and wound, with intent aforesaid, thereby, then and there giving, to the said Emma Carow, in and upon the left side of the body and in and upon the left side of the head, of her, the said Emma Carow, with the intent aforesaid, thereby, then and there, to give to her, the said Emma Carow, in and upon the left side of the body and in and upon the left side of the head, of her, the said Emma Carow, with the leaden bullets, aforesaid, so as aforesaid, discharged and shot out of the pistol, commonly called a 'revolver,' aforesaid, by force of the gunpowder, aforesaid, by the said Charles Nichols, in and upon the left side of the body and in and upon the left side of the head, of her, the said Emma Carow, two mortal wounds, each, circular in form, about one-half of an inch in diameter and of the depth of five inches, of which said mortal wounds, she, the said Emma Carow, instantly died, and so the said Allen E. Warren does say that the said Charles Nichols, her, the said Emma Carow, unlawfully, wilfully, purposely, feloniously and of his deliberate and premeditated malice, did kill and murder, contrary to the form of the statute, in such case made and provided and against the peace and dignity of the State of Nebraska.

"ALLEN E. WARREN,

"County Attorney of Cheyenne County, Nebraska."

"The State of Nebraska, Cheyenne County, SS.

"Allen E. Warren, of lawful age, being first duly sworn, deposes and says, that he is the duly elected, qualified and acting county attorney of Cheyenne County, Nebraska, and that he has made and read the foregoing information and that the offense charged therein, is true, as he verily believes and that the said offense contained and charged in said information, is true, as he verily believes.

"ALLEN E. WARREN.

"Subscribed in my presence and sworn to before me, this 17 day of October, 1921.

(Seal) "ISOLA B. WASSON,

"Clerk of the District Court of Cheyenne County, Nebraska."

It was in attempting to follow this complicated form, giving and repeating unnecessary details, that the complainant before the examining magistrate inadvertently referred in one place to the accused instead of the victim of the homicide. While the charge in the present instance was sufficient notwithstanding the error, justice is sometimes delayed or defeated by errors in vain and pompous repetitions found in common-law forms. The ancient form used by the county attorney in the present instance is a relic of times when blood-thirsty rulers, religious bigots and political tyrants intentionally inflicted punishments on innocent victims under false charges. Those abominations have passed away, but some of their forms still remain to embarrass the courts in the administration of justice under new conditions.

The legislature has made provisions for averting some of the evils resulting from the failure to observe technicalities of the common law in regard to informations. A statute on this subject provides:

"No indictment shall be deemed invalid, nor shall the trial judgment or other proceedings be stayed, arrested or in any manner affected: First. By omission of the words, 'with force and arms,' or any words of similar import; or, Second. By omitting to charge any offense to have been contrary to a statute or statutes; or, Third....