Ringer v. State

• Decision Date: 03 March 1926
• Docket Number: 24865
• Citation: 207 N.W. 928,114 Neb. 404
• Parties: DONALD RINGER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

207 N.W. 928

114 Neb. 404

DONALD RINGER v. STATE OF NEBRASKA

No. 24865

Supreme Court of Nebraska

March 3, 1926

ERROR to the district court for Adams county: WILLIAM A. DILSWORTH JUDGE. Affirmed.

AFFIRMED.

J. E Willits, for plaintiff in error.

O. S Spillman, Attorney General, and Lloyd Dort, contra.

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

OPINION

DAY, J.

Donald Ringer, hereinafter referred to as defendant, was convicted of murder in the first degree for killing one Carl W. Moore on October 16, 1924, and, in response to the verdict fixing the penalty, was sentenced to suffer death. Alleging that there was prejudicial error upon the trial, the defendant has brought the record of his conviction to this court for review. It is first urged that the court erred in overruling the defendant's plea in abatement. It appears that, when the defendant was about to be arraigned, his counsel in open court stated that he desired to present a plea in abatement, but would waive a jury trial on such plea.

Very much abbreviated, the plea in abatement alleged, in substance, (1) that the defendant never had a preliminary examination as provided by law; that no witnesses were examined by the magistrate and the binding of the defendant over to the district court was void and of no effect; (2) that the information does not allege facts sufficient to charge any degree of murder or manslaughter; (3) that there is no law in effect in the state of Nebraska defining murder or manslaughter; and (4) that the defendant was brought into the state of Nebraska from the state of Mississippi and other states, unlawfully and by force of arms, and by reason thereof the court has no jurisdiction over the person of the defendant.

In respect to the first point raised by the plea in abatement, to the effect that no preliminary examination was had, we think the record fails to sustain the defendant's contention. When the defendant was brought before the magistrate and arraigned, he entered a plea of guilty to the complaint, and, without the examination of witnesses, was bound over to the district court. It is argued by the defendant's counsel that the magistrate had no power to bind the defendant over to the district court except upon the sworn testimony of witnesses. This position is untenable. The right of a preliminary examination is one which may be waived by the accused. Clawson v. State, 96 Neb. 499, 148 N.W. 524; Reinoehl v. State, 62 Neb. 619, 87 N.W. 355. The precise question now before the court was considered in Latimer v. State, 55 Neb. 609, 76 N.W. 207, where it was held:

"If the accused, on being arrested and brought before an examining magistrate, voluntarily pleads that he is guilty of the crime charged against him, he thereby waives his right to a preliminary examination."

It is urged, however, that, in entering the plea of guilty to the complaint, the defendant acted without advice of counsel or friends and under the dominating influence of the officers who had him in charge. It is true that the defendant did not have counsel, and that his friends had not been notified that he had been returned to the state of Nebraska. The record shows, however, that when he was brought before the examining magistrate he was told that he was entitled to have counsel to represent him, that he was entitled to have a continuance if he desired, and that it was not necessary for him to plead. After being so advised, the defendant stated that he was ready to plead, and upon being arraigned to the complaint he pleaded guilty. The showing made by the defendant in support of his claim that he was dominated by the officers in entering the plea is far from convincing.

The preliminary hearing was on January 7, 1925, the day defendant was returned to Adams county. On the following day a motion was made to expunge the record and grant defendant a further preliminary hearing. This was denied by the magistrate. Under the showing, there was no error in refusing to open up the case for further testimony. It may well be doubted whether the magistrate had any power to withdraw his order made on the previous day.

The second proposition in the plea of abatement is that the facts alleged in the information are not sufficient to charge any degree of murder or manslaughter. The form of the information in the present case was, no doubt, drawn in response to a suggestion of this court in Nichols v. State, 109 Neb. 335, 191 N.W. 333, in which it was stated that the long and complicated form of an information for murder, generally in use, is not necessary to meet the requirements of the statute, and a short form set out in the opinion was suggested. The question now raised was before the court in Phegley v. State, 113 Neb. 138, 202 N.W. 419, in which it was held: "An information charging murder in the first degree in language bringing it within the rule announced in Nichols v. State, 109 Neb. 335, 191 N.W. 333, is sufficient." Measured by these standards, the information charged the offense of murder in the first degree.

The third contention raised by the plea in abatement to the effect that no crime of murder or manslaughter existed in the state at the time the alleged crime was committed, is entirely without merit. This point was also raised in the Phegley case, supra, wherein it was held:

"Defendant's contention that no crime of murder existed in this state at the time the crime charged was committed is not well taken in view of section 1, art. XVII of the present Constitution, which provides: 'All laws then in force, not inconsistent with the Constitution as amended by such proposals as may be adopted at such election, shall continue in force until amended or repealed.'"

The fourth proposition urged in support of the plea in abatement is that the defendant was unlawfully and by force of arms removed from the state of Mississippi and other states and brought to the state of Nebraska. The evidence in support of this phase of the plea was the affidavit of the defendant. The affidavit, however, does not show that he was taken out of the states mentioned without his consent or against his will, nor does it set out any facts from which such an inference may fairly be drawn. The presumption is that the officers acted lawfully and within their authority. In this connection it may be stated that at a later period during the trial a writing was introduced in evidence, signed by the defendant, in which he waived extradition from the state of Mississippi to the state of Nebraska. Considering the record made in support of the plea in abatement and the proposition of law presented, we are quite satisfied there was no error in overruling the plea in abatement.

It is next urged that the court erred in overruling the defendant's demurrer to the information. The questions raised by the demurrer have been considered in the points in the plea in abatement and further discussion seems unnecessary. Upon the authority of the Phegley case, supra, the demurrer was properly overruled.

It is next contended that the court erred in overruling the defendant's motion for a continuance. The motion recited that a continuance was desired in order to enable defendant to secure the testimony of certain witnesses who would testify that, while the defendant was in the different places named, he made no effort to conceal himself. With respect to these witnesses no showing of diligence was made. The motion also recited that the defendant desired the testimony of George Bender, who would testify that the defendant was not with Carl W. Moore on the date of the homicide. Bender was charged in the information as co-defendant. Counsel for defense admitted that he did not know his whereabouts. Bender was a fugitive from justice. There was no showing of any probability that his evidence could be obtained. In Dinsmore v. State, 61 Neb. 418, 85 N.W. 445, it was held: "The granting or refusing of a continuance of a criminal cause rests in the sound discretion of the court, and a ruling in that regard will not be disturbed on review, in the absence of a showing of an abuse of discretion." There was no error in overruling the motion for continuance.

Defendant also complains of the overruling of his motion for a change of venue. The only showing made in support of the motion was the verification of the motion by the defendant. There was no error in the ruling on the motion. "A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of such discretion is disclosed." Simmons v. State, 111 Neb. 644, 197 N.W. 398.

Defendant also urges that the court erred in overruling his motion to quash the jury panel. The point sought to be made is that, of the 24 names of jurors selected from a list of 60 names submitted by the board of supervisors, 22 only were on the regular panel. The record shows that in the manner provided by law 24 names of jurors were regularly selected and summoned for jury service. On reporting to the court, two of the men selected were excused for good cause and their places filled by the sheriff, by order of the court. This order of the court was authorized by section 9078, Comp. St. 1922, which was then in force.

The defendant also contends that the court erred in overruling his challenge for cause made against four jurors during the course of their examination. It would unduly prolong this opinion to set out in detail the examination of the several jurors. Generally speaking, they all stated that they had read newspaper articles concerning the case, had talked about the case, and formed opinions, which they still held. Upon examination by cou...