Richards v. State

• Decision Date: 06 October 1887
• Citation: 34 N.W. 346,22 Neb. 145
• Parties: RICHARDS v. STATE.
• Court: Nebraska Supreme Court

22 Neb. 145

34 N.W. 346

RICHARDS

v.STATE.

Supreme Court of Nebraska.

October 6, 1887.

Syllabus by the Court.

The law relating to the time in which bills of exceptions are to be prepared is to be liberally construed; and where a court reporter is unable to prepare the bill within 80 days from the adjournment of the court sine die, the fault not being that of the plaintiff in error, the bill should be signed, and made a part of the record.

Affidavits used in the hearing of a matter in the trial court must be embodied in a bill of exceptions, to be available as evidence in the supreme court.

Where a party is bound over to await the action of a grand jury, and the grand jury investigates the charge, and makes report to the court, “No cause of action,” and the accused is thereupon discharged, the prosecuting attorney cannot thereupon treat such finding as void, and file an information against the accused for the same offense upon the same evidence; the jury being the judges of the credibility of the witnesses.

Error from district court, Gage county; BROADY, Judge.Burke & Prout and N. T. Gadd, for plaintiff.

The Attorney General, for defendant.

MAXWELL, C. J.

The plaintiff was convicted of embezzlement in the district court of Gage county, and sentenced to imprisonment in the penitentiary. He now prosecutes a petition in error.

1. The attorney general moves to quash the bill of exceptions for the reason that it was not signed within 80 days from the time the court adjourned sine die. It appears from the record that the time in which to prepare the bill was extended to 80 days, and the stenographer certifies that he was unable to prepare the bill within the time limited. This being the case, the plaintiff was not at fault. So far as appears, he has done all that he could to procure the bill within the time stated. In the absence of a showing to the contrary, all presumptions of diligence are in favor of the plaintiff in error. The law relating to the preparation of bills of exceptions should be liberally construed, as being in furtherance of justice. The motion, therefore, must be overruled.

2. There is also a motion to suppress certain affidavits for the reason that they are not embodied in a bill of exceptions. The invariable holding of this court has been that, where affidavits were used on the hearing of a matter in the court below, they must be embodied in a bill of exceptions, to be available as evidence in the supreme court; in other words, as evidence that they were used on the hearing in the court below. The motion to suppress must therefore be sustained.

3. It appears from the record that prior to the twenty-sixth day of September, 1886, the plaintiff had been bound over to await the action of the grand jury of Gage county on a charge of embezzlement; that on that day the said grand jury made the following report to the court:

“ State of Nebraska vs. W. H. Richards.

Witness examined by the grand jury, and no cause of action found.

L. C. BROWN, Foreman.”

The court thereupon made the following order:

“ State of Nebraska vs. W. H. Richards.

SEPTEMBER 26th. The grand jury having ignored the charge, the defendant is discharged.”

The plaintiff then departed to his home in another state. On the twenty-eighth of the same month, Alfred Hazlette, who also signs the information as deputy district attorney, filed an information in said court charging the plaintiff with the same offense which the grand jury had investigated, and found no bill. This information was sworn to before a notary public. The law has not made it the duty of a district attorney to file an information in a case where a grand jury has refused to find a bill. The grand jurors, upon oath, find, or refuse to find, an indictment; and at least 12 of them must concur in making the charge. In other words, an indictment is a positive charge, upon oath, of at least 12 of the grand jurors, that the accused is guilty of the offense charged; while a refusal to find a bill is equivalent to a finding, under oath, of said jurors, that the evidence is insufficient to warrant the charge. The defendant is therefore entitled to his discharge, and no prosecuting officer has the right to treat such finding as void.

In cases where additional evidence is submitted to the same or a subsequent grand jury, it is probable that a different result may be reached. 4 Bl. Comm. 305. The author quoted says (Id. 305) that, “where the jury think the charge groundless, they indorse the indictment prepared by the prosecuting officer, ‘Not a true bill,’ or, which is a better way, ‘Not found,’ and then the party is discharged without further answer. But a fresh bill may afterwards be prepared to a subsequent grand jury.”

The act of charging a party with the commission of a crime which may blast his reputation and cover his name with ignominy is certainly a serious one, which ought not to be done without sufficient cause. From the days of magna charta, the common law, in theory at least, has protected all persons from needless...