Rauschkolb v. State
| Decision Date | 09 January 1896 |
| Docket Number | 7602 |
| Parties | BERNHARDT RAUSCHKOLB ET AL. v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county. Tried below before BUSH, J.
REVERSED AND REMANDED.
John S Stull and C. P. Edwards, for plaintiffs in error:
The court erred in refusing plaintiffs in error a reasonable time in which to prepare for trial after the name of the witness Levi Shores had been indorsed on the information. (Johnson v. Dinsmore, 11 Neb. 394; Newman v State, 22 Neb. 355; Gandy v. State, 27 Neb 707; People v. Evans, 72 Mich. 367; Elliott v. State, 34 Neb. 48.)
A. S. Churchill, Attorney General, George A. Day, Deputy Attorney General, and A. J. Burnham, County Attorney, for the state, cited: Gandy v. State, 24 Neb. 723.
See opinion for statement of the case.
This is a prosecution brought under section 20, chapter 50, Compiled Statutes of this state, for keeping and having in possession for sale, without a license, certain intoxicating liquors. The prisoners were found guilty, and the judgment rendered against them upon the verdict is before us for review.
The record discloses that the case was continued from term to term until the 20th day of March, 1894, when, upon a showing made by the county attorney, permission was given, over the objection of defendants, to indorse upon the information the name of Levi Shores. An exception to the ruling was taken, and the defendants thereupon, by reason of said indorsement, asked that they be given twenty-four hours in which to prepare for trial. This the court refused, but arraigned the defendants at once, and forthwith impaneled a jury to try the case, and on the same day a verdict of guilty was returned. The permitting the county attorney to indorse the name of the witness on the information and refusing defendants' request to postpone the trial are assigned for error.
Section 579 of the Criminal Code provides that the prosecuting attorney shall indorse on the information 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. In the case under consideration it appears from the affidavit of the county attorney that he was not such officer when the information was filed, and that he had no means of knowing that Levi Shores could give material testimony until the time the application was made to indorse his name. The statute gives authority to indorse upon an information the names of additional witnesses after the filing thereof and before the trial. It is discretionary with the trial court whether such permission shall be given or refused, and its ruling in that regard is no ground for disturbing the verdict, where no abuse of discretion is made to appear. Upon the showing made, we think the discretion of the court was properly exercised in authorizing the name of the witness to be indorsed on the information.
The denial of the defendants' request for a postponement of the trial is fraught with more serious consequences. It was the...
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