Nightingale v. State
| Decision Date | 10 July 1901 |
| Citation | 87 N.W. 158,62 Neb. 371 |
| Parties | NIGHTINGALE v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A deputy clerk of the district court has authority to swear the county attorney to an information in a criminal case.
2. The overruling of an objection to an improper question propounded to one of the witnesses for the defendant in a criminal case is not reversible error if the answer of the witness has no prejudicial tendency.
3. The trial judge may, in a criminal case, in order to prevent a miscarriage of justice, cross-examine witnesses for the accused, but the right to do so should be exercised sparingly, and with great discretion.
4. The court, as part of its charge, gave to the jury an instruction on the subject of reasonable doubt almost identical with the one set out in the fifth point of the syllabus to Willis v. State, 61 N. W. 254, 43 Neb. 102.Held, not error.
5. An instruction in which the court said to the jury that the evidence tended to show that the defendant was, when the crime was being committed, at such a distant and different place that he could not have participated in its commission, and that they should acquit unless the evidence satisfied them beyond a reasonable doubt that he was present when the crime was committed, held not error.
Error to district court, Douglas county; Baker, Judge.
Edward Nightingale was convicted of robbery, and brings error. Affirmed.
J. M. Macfarland, for plaintiff in error.
F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.
In the district court of Douglas county, Edward Nightingale was charged with the crime of robbery. The jury found him guilty, and he was sentenced to imprisonment in the penitentiary for a period of 10 years. The testimony given by the state to establish defendant's guilt was direct, positive, and, in our opinion, quite sufficient. The crime was a bold and reckless one, committed in broad daylight in a saloon in the city of South Omaha. That the prosecuting witness was robbed by some one seems to be admitted. Two witnesses identified the defendant as the robber, and a third claimed to have received from him an order for the payment of money, which was one of the fruits of the crime. The defense relied upon was an alibi, but the evidence in support of it is neither satisfactory nor convincing. Certainly it is not so persuasive as to compel belief.
The second specification of error discussed by counsel is that the information was not properly verified. It was sworn to before the deputy clerk of the district court, who had, by virtue of his appointment, all the power and authority in the premises that his principal possessed. In the absence of an implication to the contrary in the statute, the rule is that a deputy is authorized to do any official act that may be done by his principal. In Mortgage Co. v. Nye, 58 Neb. 661, 79 N. W. 553, it was decided that a deputy sheriff has authority to appraise property for the purpose of a judicial sale; and in other cases it was held that such an appraisement is not a ministerial, but a judicial, act. Vought v. Foxworthy, 38 Neb. 790, 57 N. W. 538;Ecklund v. Willis, 44 Neb. 129, 62 N. W. 493;Investment Co. v. Aspinwall, 45 Neb. 601, 63 N. W. 827;Burkett v. Clark, 46 Neb. 466, 64 N. W. 1113. That the clerk of the district court has authority to swear the county attorney to an information in a criminal case is settled in this state by State v. Lauver, 26 Neb. 757, 42 N. W. 762;Sharp v. State, 61 Neb. 187, 85 N. W. 38;Trimble v. State, 85 N. W. 844.
Defendant excepted to a ruling by which one of his witnesses was required to answer this question: “Are you related to Mr. Boylan, who was charged in this court with Mr. Nightingale's son in some crime?” While the ruling is not to be commended, it affords no ground for reversing the judgment. The answer cast no imputation on the prisoner. It afforded no ground for an inference that he had been previously charged with the commission of a public offense of any grade.
It is alleged as error that the trial judge was perniciously active in assisting the county attorney during the progress of the trial. The record, we regret to say, does show that the learned judge did on several occasions interrogate defendant's...
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