Quinton v. State

• Decision Date: 20 November 1924
• Docket Number: 24009
• Citation: 200 N.W. 881,112 Neb. 684
• Parties: CARL D. QUINTON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

200 N.W. 881

112 Neb. 684

CARL D. QUINTON v. STATE OF NEBRASKA

No. 24009

Supreme Court of Nebraska

November 20, 1924

ERROR to the district court for Cass county: ALEXANDER C. TROUP JUDGE. Affirmed.

AFFIRMED.

Paul Jessen, D. W. Livingston and A. L. Tidd, for plaintiff in error.

O. S Spillman, Attorney General, Lloyd Dort and J. A. Capwell contra.

Heard before MORRISSEY, C. J., DEAN, GOOD and THOMPSON, JJ.

OPINION

THOMPSON, J.

This is a prosecution by indictment, in the district court for Cass county, against Carl D. Quinton, Sheriff (plaintiff in error), wherein defendant was charged with malfeasance in office, under sections 2381 and 9722, Comp. St. 1922. The first two counts charged him, in substance, with failure to enforce the liquor laws of the state. The third, fourth, fifth, and sixth charged him with failure, as sheriff, to file quarterly reports with the board of county commissioners of Cass county of fees earned and collected by him as sheriff during the year 1923, and failure to make quarterly payments of such fees to the county treasurer of Cass county. The seventh and eighth counts charged him, in addition, with failure to report fees collected for serving processes issued by justice courts, and for serving processes issued by courts outside Cass county on persons within the county, respectively, and the eighth further charges him with failure to keep a record of such foreign fees.

Trial was had to a jury. There was a verdict of acquittal as to the first two counts, and of guilty as to the remaining six. Motion for a new trial was overruled, and judgment of removal from office and a fine of $ 200 was imposed on defendant. Grounds upon which reversal is sought may be summarized as follows:

The court erred in refusing the then county attorney, A. G. Cole, permission to appear before the grand jury, and later to prosecute the case, and in appointing, on its own motion, D. O. Dwyer as special county attorney, and afterwards calling to his assistance W. R. Patrick; in refusing defendant a jury trial on his plea in abatement, and in overruling the plea.

The court erred in declaring a mistrial and discharging the jury on December 11, 1923, and afterwards, at a subsequent term, on January 16, 1924, in entering a nunc pro tunc order as to the December judgment.

The court erred in not considering evidence on issues raised, and in not granting defendant a jury trial on his plea in bar, after the state had interposed a demurrer to the plea, and while same was pending, and in sustaining the demurrer thereto, resulting in his being twice placed in jeopardy.

The court erred in changing a written instruction to the jury out of the presence of defendant, and in its failure to read said instruction to the jury after it was so changed, without conducting the jury into the courtroom for that purpose; and also in refusing to give instructions Nos. 2 and 3 requested by defendant, and in giving instructions Nos. 6 and 13 on its own motion.

Taking up these alleged errors in their order: We have carefully considered the facts upon which the court determined the incompetency of the then county attorney, A. G. Cole, and appointed D. O. Dwyer as special county attorney to appear before the grand jury, and in appointing him special attorney to prosecute the case, with Mr. Patrick as assistant, and we conclude that the facts warranted the action of the court, under section 4917, Comp. St. 1922, and within our holding in Spaulding v. State, 61 Neb. 289, 85 N.W. 80.

The record does not show that the defendant was prejudiced by the denial of his request for a jury trial on his plea in abatement, and the court did not err. Bolln v. State, 51 Neb. 581, 71 N.W. 444. It must be remembered, also, that the plea in abatement was met by an answer, alleging substantial facts tending to refute the alleged disqualification of Dwyer, as alleged in the plea, to which no reply was filed. Therefore, the facts well pleaded in the answer stand admitted. The answer also contained an allegation "that the facts stated in the plea are not sufficient to abate the action." The court determined these two questions by overruling the plea, and its ruling was not error, either as one of fact or one of law.

Then defendant later filed a plea in bar. This was a complete waiver of all errors complained of growing out of or connected with his plea in abatement. Bush v. State, 55 Neb. 195, 75 N.W. 542; Sheppard v. Graves, 55 U.S. 505, 14 How. 505, 14 L.Ed. 518; Robertson v. Lea, 1 Stew. (Ala.) 141.

It must be remembered also that, in addition to the things ordinarily alleged in a plea in bar, defendant added thereto the following, and positively swore to it: "And this defendant alleges that said indictment was sufficient." A plea of previous acquittal must of necessity contain allegations showing legal jeopardy, which waives all previous attacks as to jurisdiction, indictment, and procedure. As stated in Sheppard v. Graves, supra: "If after such matters relied on, a defense be interposed in bar and going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial, and are waived."

As to defendant's second contention: After the case had proceeded for a day or more on its merits, the court's attention was called to the misconduct of one of the jurors, Henry Brockman. An investigation was had by the court, in the presence of counsel for both parties and defendant. Witnesses as well as the juror were examined and cross-examined by the respective attorneys for the parties. At the conclusion of the hearing, December 11, 1923, the court announced as its judgment (as is shown by the nunc pro tunc order hereinafter referred to), in substance, as follows: That the court is convicted from the evidence that the juror, Henry Brockman, is incompetent and disqualified on account of his partiality toward the defendant, and his failure to disclose this fact on his voir dire examination; that the state was thereby misled in permitting him to remain on the jury, and a fair and impartial trial cannot be had. On motion of the state, the court declared a mistrial and discharged the jury from further consideration of the case, without prejudice to the prosecution.

After this discharge of the jury, and at a subsequent term of court, the plea of not guilty was withdrawn, and a plea in bar on the part of defendant was filed, which alleged, in substance, that the rendering of the judgment of December 11, 1923, was an acquittal of defendant, and to permit the state to proceed under the original indictment would be to place defendant twice in jeopardy. The state demurred to this plea. The court then on its own motion, the same judge presiding who declared the mistrial and discharged the jury, having in mind what took place on December 11, 1923, and also the clerk's entry appearing on the journal, entered a nunc pro tunc order, entering of record the judgment rendered December 11, 1923. The entry of this nunc pro tunc order on January 16, 1924, made the record show as of December 11, 1923, what in fact was done by the court on that date. Such orders are frequently made in the furtherance of justice and the due administration of the law, and may be made at the term or at a subsequent term. Error was not thus committed. 15 C. J. 972, sec. 386; State v. Moran, 24 Neb. 103, 38 N.W. 29; Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023; Central West Investment Co. v. Barker, 79 Neb. 47, 112 N.W. 291; Sutter v. State, 105 Neb. 144, 179 N.W. 414.

As to the third assignment of error: After this nunc pro tunc order had been entered, the case came on to be heard on the demurrer to the plea, which was sustained. It is elementary that a court will take judicial notice of its own records in the case before it. After the nunc pro tunc order was entered, the judgment discharging the jury without prejudice, and holding the case for trial, was before the court. The issue then was one of law and not of fact. This being the status of the case, the court did not err in sustaining the demurrer and denying a trial by jury on this plea. George v. State, 59 Neb. 163, 80 N.W. 486.

Defendant cites in support of his contention that he has been twice placed in jeopardy section 10151, Comp. St. 1922, which is as follows: "In case a jury shall be discharged on account of sickness of a juror, or other accident or calamity requiring their discharge, or after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge shall be entered upon the journal and such discharge shall be without prejudice to the prosecution." He contends that the judgment did not adjudge that a juror was sick, or that an accident or calamity had occurred, or that there had been a failure of the jury to agree, and that as the cause for the discharge of the jury did not come within the ordinary understanding of either "accident or calamity," or failure to agree, the act of the court at the trial was in law an acquittal, and he is twice placed in jeopardy. From such a contention,...