Olive v. State

Decision Date08 December 1880
Citation11 Neb. 1,7 N.W. 444
PartiesOLIVE AND ANOTHER v. STATE OF NEBRASKA.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

LAKE, J.

The first point made by counsel for the prisoners in their briefs, and the first arising in the order of steps taken in the prosecution of the case, is that the affidavit of C. W. McNamar, by virtue of which the judge of the fifth judicial district assumed jurisdiction of the alleged offence, and designated Adams county, in that district, as the place of trial, was insufficient for that purpose. The question thus raised was renewed by the motion to quash the indictment, and it strikes at the very foundation of the prosecution. The supposed authority for making this affidavit, and that for the subsequent action of the judge and court, based thereon, is the act of February 24, 1879, (Session Laws, 62,) in the first section of which it is enacted: “That it shall be lawful for the judge of any judicial district court within the state of Nebraska, when it has been made to appear to him that a crime has been committed, amounting to felony, within any unorganized county or territory, or in any county where no terms of the district court of this state are held, attached to or in his said district for judicial or other purposes, to designate the county in his district wherein the alleged offence may be inquired into by the grand jury, and, in case an indictment is found, the person or persons so indicted tried.” It is contended on behalf of the prisoners that this is a void act, and conferred no power whatever upon either the judge or court to take cognizance of the case.

That portion of the section which we have quoted, and it is all of it that need be here noticed, is but a re-enactment of a prior statute on the same subject, which, in so far as it pertains to unorganized counties in a district, was before this court in the case of Dodge v. The People, 4 Neb. 220, and held not to be in conflict with any provision of our former constitution. But in view of the words or in any county where no terms of the district court of this state are held, we were then careful, in asserting the constitutionality of the act, to go no further than was necessary in disposing of that case. Accordingly, in the opinion of the court, by Maxwell, J., it is said that the act above quoted, so far at least as it applies to unorganized counties, is clearly within the power of the legislature.” This fully met the objection in that case, and, in view of the provisions of that constitution, doubless stated the law correctly. But without at all questioning the soundness of that decision it is now here contended that, by force of our present constitution, this entire statutory provision must fall. The section of the constitution for which this effect is claimed is the eleventh of the Bill of Rights,” wherein it is declared that “in all criminal trials the accused shall have the right to * * * * a speedy public trial, by an impartial jury of the county or district in which the offence is alleged to have been committed.”

This provision of the fundamental law is peculiar to the constitution of 1875, there being nothing similar to it in that of 1866, and this is the first time we have had occasion to consider it. Its language, however, is too simple, and its meaning too obvious, to admit of any serious doubt as to the right thereby intended to be secured to persons charged with crime under the laws of this state. Of the words employed, district is the only one as to the full purpose of which there can be in the minds of any even the shadow of a doubt. But this, like the word “county” in the same sentence, is used in a restrictive sense, to limit and control the exercise of both legislative and judicial power in the punishment of criminal offenders.

In its ordinary meaning the word district is commonly and properly used to designate any one of the various divisions or subdivisions into which the state is divided for political or other purposes, and may refer either to a congressional, judicial, senatorial, representative, school, or road district, depending always upon the connection in which it is used. In the clause quoted, very clearly it refers to neither of these, and, although not synonymous with the word “county,” yet, by its connection with it, the intention evidently was that they should be taken in a similar sense, and as designating the precise portion of territory, or division of the state, over which a court, at any particular sitting, may exercise power in criminal matters. And such division, by whatsoever name it may be known in legislation, is co-extensive with and practically limited by this constitutional provision to that from which a jury, for the particular term, may legally be drawn. And this is in entire accord with our constitutional system of district courts, by which one is designed for each organized county, having criminal jurisdiction co-extensive therewith, and assisted by jurors drawn in the manner now provided by law from the whole body of the people thereof.

It is doubtless a legitimate inference from this use of the word “district,” without, in terms, affixing to it any definite territorial limits, that the legislature may, in their discretion, by a general law, create trial districts which shall include more territory than a single county. But to be effective under this provision of the constitution such law must be accompanied by one under which jurors can be called from the whole body, and not from a portion, merely, of such district. In other words, the trial district and the jury district must be the same. The grand design of this provision of the fundamental law seems to be to secure to the accused a trial by a jury from the vicinage where the crime is supposed to have been committed, so that he may have the benefit of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the witnesses who give evidence before them. Cooley's Const. Lim. 395. Presuming this view of the law to be correct, and we have no doubt that it is, how stands the case as to the question of the jurisdiction of the court over the alleged offence? The indictment alleges the crime to have been committed “within that part of Custer county lying west of Sherman county, and within the fifth judicial district, * * * and where no terms of the district court are held, or have ever been held; and that said county of Custer has never been organized for judicial purposes, and has never been assigned to any county * * * for judicial purposes.” And it recites the order of the judge of the fifth judicial district, designating Adams county as the one “wherein said alleged crime * * * should be inquired into by the grand jury, * * and in case an indictment be found said prisoner or prisoners so indicted be tried.”

It was doubtless intended to show by this recital that the case was one of those contemplated by the aforesaid statute, and also the reason why the court, while sitting in Adams county, was exercising jurisdiction of a crime laid in Custer county. But, even if it were conceded that this statute is in all respects a valid act, the alleged want of county organization in Custer is insufficient to bring the case within it. No such thing is contemplated by this act as a county organized for judicial purposes. Where a county is once organized for local government, under the law providing how that may be accomplished, as Custer county confessedly was, and long before that time, and of which all courts were bound to take notice, it is organized for all the known purposes of civil administration, judicial as well as other, just as completely as is the oldest in the state. It is clear that the act itself makes no such distinction as is here sought to be established. It does not purport to confer jurisdiction over counties “not organized for judicial purposes,” but only in any organized county. There is, however, a more radical objection to be noticed. At the adoption of the constitution of 1875 the territory now known as Custer county was wholly unorganized, a portion of it being in the fifth and a portion in the sixth judicial district, as formed by that instrument. Section 10, art. 6. In defining these districts the constitution names several counties, together with “the unorganized territory” lying west thereof, as the portion of the state to be embraced by each; and, by the second clause of the same section, these districts were to so remain “until otherwise provided by law;” that is, by act of the legislature.

The boundaries of Custer county were defined by an act of the legislature, approved February 17, 1877. In July of that year the first election of county and precinct officers was held, the county seat located, and all the machinery of a complete county organization put in motion, as the statute directs. This done, that which the legislature had set apart as Custer county became detached from the “unorganized territory” of the constitution, and united with the organized portion of the state. To it, thenceforward, the term “unorganized territory” was no longer applicable, nor could it be legally treated as such any more than could Douglas or Lancaster county. The position taken by counsel for the state, that at the time of the alleged murder the portion of territory set apart and organized as Custer county bore, and still bears, the same relation to the fifth and sixth districts as at their creation in 1875, a part being in each, cannot be sustained. The constitution, by an arbitrary line drawn from east to west, divided the “unorganized territory,” by which is to be understood, that portion of the state remaining at any time without a county organization, between these two judicial districts. Now there is nothing in the constitution prohibiting the formation of new counties, from time to time, out of this...

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