Olive v. State

• Decision Date: 08 December 1880
• Parties: I. P. OLIVE AND FREDERICK FISHER, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

7 N.W. 444

11 Neb. 1

I. P. OLIVE AND FREDERICK FISHER, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 8, 1880

ERROR to the district court of Adams county.

The plaintiffs in error were indicted at a special term of the court called in that county, commencing February 25, 1879 for the murder of Luther Mitchell on the 10th day of December, 1878, in the county of Custer. On the 24th of February, 1879, the legislature passed the following act:

"An act to authorize the judge of the district court to designate the county where an indictment may be found, and the person tried for any felonious offense charged to have been committed in any unorganized county or territory of this state, or in any county where no district courts are held and to provide for the payment of fees and expenses incurred in the arrest and prosecution of such persons, and to repeal an act entitled 'An act to authorize the judges of the district court to designate the county where an indictment may be found, and the person tried for any felonious offense charged to have been committed in any unorganized county, or in any county where no district courts are held,' approved February 25, 1875.

"Be it enacted by the Legislature of the State of Nebraska:

"SECTION 1. That it shall be lawful for the judge of any judicial district court within the state of Nebraska, where it has been made to appear to him that a crime has been committed amounting to a 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 offense may be inquired into by the grand jury, and in case an indictment found, the person or persons so indicted, tried: Provided nothing herein shall prevent the person or persons indicted upon a legal and proper application, removing the trial thereof to some other county in the same judicial district and, provided further, that all costs and expenses for the arrest and prosecution of such person or persons shall be paid out of the general fund of the state; and, provided further, that no bill for costs or expenses-shall be audited and paid without the certificate of the presiding judge of said district, that said services have been performed, and that the account is correct.

"SEC. 2. Sections one and two of an act entitled 'An act to authorize the judges of the district court to designate the county where an indictment may be found, and the person tried for any felonious offense charged to have been committed in any unorganized county, or in any county where no district courts are held,' approved February 25, 1875, are hereby repealed.

"SEC. 3. There being an emergency for the taking effect of this act, the same shall take effect and be in force from and after its passage.

"Approved February 24, A.D. 1879"

On the 26th day of February, 1879, an order was made by the district judge, and entered of record, as follows:

Be it remembered, that on this 26th day of February, A.D. 1879, it having been made to appear to the Hon. William Gaslin, Jr., judge of the fifth judicial district of Nebraska, that a certain crime, amounting to a felony, to-wit, the murder of one Luther Mitchell, was committed on the 10th day of December, 1878, in the said so-called county of Custer, west of Sherman county, and within the fifth judicial district of the state of Nebraska, and it appearing further that no terms of the district court have been or are now held in the said so-called county of Custer, and it further appearing that so-called Custer county is so situated geographically that under the constitution of this state that all that portion of said county of Custer lying west of Valley county is in the sixth judicial district of the state of Nebraska, and that all that portion of said Custer county lying west of Sherman county is in the fifth judicial district of the state of Nebraska, and it further appearing that no term of the district court can be called for a part of said so-called county, and that no district judge has jurisdiction over the entire county so-called aforesaid, it being in two separate and distinct judicial districts, and that said so-called Custer county, so far as holding terms of district court therein, is unorganized and not assigned to any county for judicial purposes: wherefore the county of Adams, in the fifth judicial district of the state of Nebraska, is hereby, by the judge of the said fifth judicial district, designated as the county wherein the alleged offense may be inquired into by the grand jury, and in case an indictment is found, the person or persons so indicted, tried.

In pursuance of the above act and the foregoing order, an indictment having been found by a grand jury in Adams county, plaintiffs in error were put upon their trial there, and a verdict of guilty of murder in the second degree having been returned by the jury, they were sentenced to imprisonment in the penitentiary for life. They then sued out this writ of error.

REVERSED.

Hinman & Neville, Mason & Whedon, James Laird, and Hamer & Conner, for plaintiffs in error, contended, inter alia, 1. It is not within the power of the legislature and a district judge to prevent a trial in the county where the offense is alleged to have been committed. An offense is charged to have been committed in a duly organized county, with all its county officers engaged in the discharge of their official duties. But this county is assumed to lie half in the fifth judicial district, and half in the sixth, and on this assumption it is argued that it is not judicially organized. There is no such thing as a "judicial organization" of a county necessary to its creation. A county is one creature of the law and a court is another, and a county may exist separately and independently of a court. The use of the word "district" in lieu of the word "circuit" may tend to produce confusion, but should not when we remember that it means the same thing--the counties where the judge may hold his courts, but not the "trial district." The "trial district" is that territory from all parts of which the jury must be selected, and under the present constitution and laws is confined to the county where the offense is committed, except the accused demands a change of venue. The act above quoted is in violation of the state constitution, and also of the constitution of the United States, because it permits the jurors, both grand and petit, to be selected in another county than Custer. Section 11 of the Nebraska bill of rights is a provision introduced from Article 6 of amendments to the United States constitution. In United States courts the jurors are selected from the whole district, and there is no law or rule by which they must be selected from any particular portion of the district, as for instance, Douglas or Lancaster county. The meaning of the word "district" in the federal constitution is well settled; it is either co-extensive with the limits of the state, or it is a subdivision of the state, similar to a county, with well defined boundaries, and having a court compelled to select its juries from all parts of the territory in the district. It is the dominion a court--a "trial district." If the word "district" means "trial district" in the federal constitution, should it mean something else in the state constitution? There is no adjective qualifying the word "district" in either constitution, but the intention is apparent. What is the special purpose mentioned in both these constitutions? The "right to a speedy public trial by an impartial jury." If it were possible that the word district in the state constitution had been used to mean "judicial district" then there would be a direct conflict with the United States constitution, and in such case the provisions of the state constitution are nugatory and may be annulled and set aside. Exparte Garland, 4 Wall. 358. (See argument of Reverdy Johnson.) 6 Otto, 432. 7 Otto, 518.

2. Can a judge imperil the rights of a citizen, his liberty or life, by neglecting to hold courts in the county in which the offense is committed, so as to enable an indictment and trial in some other county? The legislature has said so. The fact that "no terms of the district court are held" in the county, is made sufficient. There may be every facility and every reason for holding a court, yet if none has been held the judge may procure the indictment and trial elsewhere. Here, in a country where the laws are of English origin, and where the growth for centuries of the highest civilization is supposed to have culminated in the strongest safeguards to human liberty, we find one man invested with the power of dragging his fellow citizen before a foreign tribunal, from whose judgment there is no escape. This is more than regal power, it is unlimited despotism. If it be law, the right of the citizen to be secure in his person and his property, in his life and his liberty, is a dream and a myth, and the bill of rights may be dropped from our constitutions, state and national, as a silent letter in the orthography of government.

3. If the effect of an act is to accomplish a result forbidden by the constitution, then the act is in violation of the constitution, and is no law. The thing accomplished thus far is the prevention of a trial in the trial district, Custer county. Hence it follows that an unconstitutional result is brought about by unconstitutional means. Suppose that the legislature, when it re-districts the state--as it soon will--should leave some county in no district. What could then be done? No courts could be held...