Parks v. State

• Decision Date: 06 January 1887
• Citation: 31 N.W. 5,20 Neb. 515
• Parties: PARKS v. STATE.
• Court: Nebraska Supreme Court

20 Neb. 515

31 N.W. 5

PARKS

v.STATE.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

The holding of the supreme court in the case of Stevens v. State, 19 Neb. 647, S. C. 28 N. W. Rep. 304, to the effect that, upon the trial of a criminal case which is being prosecuted on an information, it is error on the part of the court to permit, over due objection of the accused, a witness to be sworn on the part of the state, whose name had not been indorsed on the information before the trial, adhered to.

Error to district court, Dodge county.

Information for subornation of perjury.C. Hollenback and Robert J. Stinson, for plaintiff in error.

Section 2 of the act providing for prosecuting offenses by information, (Sess. Laws Neb. 1885, p. 397,) provides that “the district attorney shall indorse the names of such witnesses as are known to him on the back of the information at the time of filing the same; and, at such other time before trial as the court shall prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him.” The statute is mandatory. Stevens v. State, 28 N. W. Rep. 304. The statute is undoubtedly copied from Michigan. People v. Quick, 25 N. W. Rep. 302;People v. Hall, 48 Mich. 487; S. C. 12 N. W. Rep. 665. See, also, U. S. v. Southmayd, 6 Biss. 321;Reg. v. Lord Gordon, 2 Doug. 591; Reg. v. Frost, 9 Car. & P. 151; Jillard v. Com., 26 Pa. 169;Com. v. Knapp, 9 Pick. 495.

Criminal statutes should be strictly construed, and nothing should be taken by intendment or implication. Gardner v. People, 3 Scam. 89;Gates v. People, 14 Ill. 435.

William Leese, Atty. Gen., William Marshall, Dist. Atty., and J. E. Frick, for the State.

COBB, J.

The plaintiff in error was tried and convicted by the district court of Dodge county, upon an information for subornation of perjury. He brings the cause to this court on error. There are 15 errors assigned, but as it was decided at the consultation that there must be a new trial upon the one arising first in the order of sequence, no good purpose would be subserved by setting them out at length here. I copy the fifth and sixth assignments of error: “(5) The court erred in allowing or permitting one John McCaught, a witness for the state, to testify, his name not appearing on the back of the information, as required by law. (6) Accident and surprise which ordinary prudence could not have guarded against. Such surprise consisted in the introduction of witnesses by the state, whose names were not indorsed on the information as required by law.”

The chapter of our statute, (chapter 54, Criminal Code,) by its first section, confers upon the district court the power to hear, try, and determine prosecutions upon information, for crimes, misdemeanors, and offenses, the same as they may in like case upon prosecutions upon indictments. Section 2 of the act (579 of the Criminal Code) provides as follows: “All informations shall be filed during the term in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing the same; and at such time, before the trial of any case, as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him.”

It appears, from an inspection of a certified copy of the information and the bill of exceptions, that several witnesses, especially John McCaught, the principal witness, were sworn and examined on the part of the state, whose names were not, at the time, indorsed or written on the back of the information. The defendant objected to the swearing of the witness McCaught, and saved his exception.

In the case of Stevens v. State, 19 Neb. 648, S. C. 28 N. W. Rep. 304, this point was squarely presented; and, upon due consideration, it was held as contended for by the plaintiff in error. Counsel now present an able brief and argument, and earnestly urge the court to reverse its decision on this point.

As to the language of the statute, it cannot be doubted that the meaning given it by the court in the above case is the plain and natural one. Counsel refer to the case of Ballard v. State, 19 Neb. 609, S. C. 28 N. W. Rep. 271, where it is held that, “in the trial of a criminal prosecution, wherein a defendant is arraigned upon an indictment found by a grand jury, the state is not precluded from the examination of witnesses whose names are not indorsed upon the indictment;” and, referring to the case of Stevens v. State, ask, “what good reason can be assigned for so limiting his rights in this regard under the former mode, and so extending them under the latter mode of prosecution?” etc. Now, it seems to me that this inquiry would be far more cogent if addressed to the proper committee of the legislature than when addressed to a court. Courts have but little to do with the policy of the laws, whatever might be the opinion of its members, as individuals, of their wisdom or...