Roby v. State

• Decision Date: 23 January 1901
• Citation: 85 N.W. 61,61 Neb. 218
• Parties: ROBY v. STATE.
• Court: Nebraska Supreme Court

61 Neb. 218

85 N.W. 61

ROBY

v.STATE.

Supreme Court of Nebraska.

Jan. 23, 1901.

Syllabus by the Court.

1. The pendency of a former information for the same offense in the same court furnishes no sufficient ground for a plea in abatement.

2. Evidence examined, and found insufficient to justify the verdict of the jury.

Error to district court, York county; Good, Judge.

Samuel D. Roby was convicted of obtaining a signature to a note by false pretenses, and brings error. Reversed.Geo. B. France, for plaintiff in error.

The Attorney General, for the State.

SULLIVAN, J.

Samuel D. Roby was tried and convicted in the district court of York county on an information charging him with having fraudulently and by misrepresentation obtained the signature of Peter Irrthum to a promissory note for $250.

The first point to which attention is directed by the petition in error and brief of counsel is the decision of the trial court sustaining a demurrer to a plea in abatement in which it is alleged that there was another information for the same offense pending against the defendant at the time the present prosecution was initiated. The ruling was correct. In Com. v. Drew, 3 Cush. 279, it is said in an opinion by Chief Justice Shaw that, where it is discovered that an indictment is defective, “the proper course is for the grand jury to return a new indictment, avoiding the defects in the first. And,” he continues, “it is no good ground of abatement that the former has not been actually discontinued when the latter is returned.” This decision is cited with approval in Bartley v. State, 53 Neb. 310, 322, 73 N. W. 744, 747, in which the conclusion of the court, from a thorough examination of the adjudged cases, is thus stated by Norval, J.: “The authorities are quite uniform in holding that the pendency of a former indictment for the same offense in the same court is no ground for abatement.”

The next contention to be noticed is that the evidence did not justify the jury in finding the defendant guilty. The testimony for the state is exceedingly weak and inconclusive with respect to three elements of the offense, and upon one essential point it is so very unsatisfactory and improbable that we feel constrained to reverse the sentence and award a new trial. After a careful reading of the bill of exceptions, we are thoroughly persuaded that the defendant was not convicted because he had committed the crime charged in the information, but because he was guilty of a moral dereliction which resulted in a serious financial loss to the prosecuting witness, an old and ignorant man. The note in question was signed at the law office of George B. France, Esq., in the city of York. About that there is no dispute. Irrthum testified that it was signed on December 16, 1899, while the defendant and four other witnesses testified that it was signed on November 20, 1899. These dates are important for the reason that the representation which Irrthum says induced him to sign the note was made, if at all, on the road between York and Benedict not earlier than November 25, 1899. The alleged...