Polin v. State

• Decision Date: 12 October 1883
• Citation: 16 N.W. 898,14 Neb. 540
• Parties: POLIn. v. STATE.
• Court: Nebraska Supreme Court

14 Neb. 540

16 N.W. 898

POLIn.

v.STATE.

Supreme Court of Nebraska.

Filed October 12, 1883.

Error from Cass county.

A. Beeson and Sullivan & Wooley, for plaintiff.

The Attorney General, ( John C. Watson with him,) for defendant.

LAKE, C. J.

The first objection to the judgment in this case is that made to the overruling of the plea in abatement. There are two points urged against the indictment, neither of which can be sustained. The first is that one of the grand jurors by which it was found, although a resident of the county, did not live in the precinct from which he was drawn. That the utmost good faith characterized the selection of the jury is unquestioned. The statute (section 658 of the Code of Civil Procedure) provides that the 60 persons from whom, for each term of a district court, jurors, grand and petit, are to be drawn, shall be selected, “as nearly as may be, a proportionate number from each precinct in the county.” This provision should have a reasonable construction, but it would not be reasonable to hold that the mistake of the commissioners in supposing that a person selected by them lived in one precinct of the county when in fact he lived in another, would disqualify him for serving, or that it tended in the least degree to prejudice the prisoner. To so hold would be altogether too technical; it would be productive of no good, and result in infinite mischief in the administration of justice. The second point is that the selection was based on the vote of the county cast at the preceding general election. It is argued that it ought to have been made on the census returns; but why on them rather than on the basis adopted, no satisfactory reason is given. The census returns would, in our opinion, approximate much less nearly to the actual ratio then existing between the precinct, of persons qualified to serve as jurors, than was reached by the basis adopted. The statute is silent as to the mode of ascertaining who, of all the inhabitants of a county, are qualified to serve in this capacity.

No provision is made for the county commissioners to enter upon a special inquiry with the view to an exact result. A particular enumeration, evidently, was not contemplated by the legislature, or provision would have been made for it. They are left to act upon the means at hand, and so long as those adopted are fair, and result in a reasonable approximation to the ratio named, it is all that could have been intended and all that is required. To be qualified as a grand juror, a person must be an elector of the county in which he is called to serve.

There are also several other requirements in the matter of qualification to be observed, which, however, the census reports would not disclose. And even in the matter of the number of qualified voters in the county, and of the ratio existing between the precincts thereof at the time of making the selection, they would have been exceedingly unreliable, much more so than was the basis taken by the commissioners. As the statute on this subject is, if we were called upon to name a basis of selection at any time, we know of none, accessible to the commissioners, that would serve the purpose better than the votes cast at the latest general election. While this, probably, would not give a result mathematically accurate in consequence of non-voters, yet, as the proportion between these and the whole number of electors may fairly be presumed to be about the same in all of the precincts, it is practically correct and all that can reasonably be required. We see no error in the rulings respecting the grand jury, and the plea in abatement was properly overruled. The affidavits for a continuance were insufficient. Most, if not all, of what it was claimed the absentees would swear to, if present, could not have been received in evidence because of its immateriality. In addition to this, the whereabouts of but one of the persons named was disclosed. He lived in Pennsylvania, but it was not shown that, even if time were given, either his personal attendance or testimony would probably be secured. There was no error in this particular.

It is further claimed that the court erred in permitting an attorney employed and paid by private parties, friends of the deceased, to aid the district attorney in the prosecution of the case. This claim is based on the following provisions of statute: Section 15, Comp. St. p. 66, provides that “it shall be the duty of the district attorney of each judicial district to appear in the district court, at each term of the same, * * *” and prosecute and defend all actions, civil and criminal, and all “matters whatsoever in which the state or county may be interested.” Section 17 prohibits him from receiving “any fee or reward from, or on behalf of, any prosecutor or other individual for his services in any prosecution or business to which it shall be his duty to attend,” etc. As we understand the claim made by counsel, it is not that these sections prohibit the district attorney from having the assistance of other attorneys in criminal prosecutions, but simply of attorneys employed on private account; and so, under a similar statute, it was decided by the supreme court of Massachusetts, followed by that of Michigan, in several cases cited. But the courts of other states, notably those of Maine, Iowa, and Kansas, under like statutes, have decided, and we think the weight of authority is, the other way. State v. Bartlett, 55 Me. 200;State v. Wilson, 24 Kan. 189;State v. Fitzgerald, 49 Iowa, 260. But, without regard to the preponderance of authorities, we think, as was said by the court in the case last cited, that such employments in this state have been “too long acquiesced in to be now called in question.”

It is a fact commonly known that from the beginning of criminal trials, in this state, this practice has been quite general, and yet, so far as we are aware, not even an attempt has been made to put a stop to it by positive legislation on the subject, which, doubtless, would have been done if it had been regarded as illegal, or in any way improper.

The request made on behalf of the prisoner for the judge to order the sheriff to discharge some of the cartridges remaining in the revolver with which the deceased was killed, was properly overruled. The object of this request was, it is said, to sustain the theory of the defense that the killing was accidental, the revolver having gone off, as was claimed, at half-cock. In the first place, the judge had no authority to require the sheriff to make the experiment, and in the second, the possibility of a discharge at half-cock could have been shown just as well with the chambers of the revolver empty, as by an actual discharge. There is no error in the several rulings, adverse to the prisoner, respecting the admissibility of evidence as to the alleged criminal intimacy between his wife and the deceased. Whatever in this regard was brought to the knowledge of the prisoner, which was of very little significance indeed, was admitted, although even this, considering the length of time that had elapsed after the...