Smith v. State
| Decision Date | 30 December 1922 |
| Docket Number | 22764 |
| Citation | 191 N.W. 687,109 Neb. 579 |
| Parties | RILEY SMITH v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Saunders county: GEORGE F CORCORAN, JUDGE. Affirmed.
AFFIRMED.
Jamieson O'Sullivan & Southard and John H. Barry, for plaintiff in error.
Clarence A. Davis, Attorney General, and Jackson B. Chase, contra.
Heard before MORRISSEY, C. J., DEAN, FLANSBURG, LETTON and ROSE JJ., SHEPHERD, District Judge.
Riley Smith was convicted in the district court for the fifth judicial district of entering a bank and intimidating its employees with intent to steal, etc. His conviction was upon the identification of the bank's cashier and of a young lady bookkeeper, coupled with circumstantial evidence tending to connect defendant with the crime. And while some of the members of the court might question, were the case before them as finders of the facts, that the proof of his guilt was beyond reasonable doubt, the majority of them agree that it is sufficient to sustain the verdict of the jury upon review. It remains to consider whether there is otherwise reversible error in the record.
Error is assigned because the trial court refused to give the defendant a continuance on account of his alleged inability to procure the attendance of Mr. and Mrs. Brown as witnesses in his behalf. The showing which he files in this connection is by no means frivolous. It states that these persons were with him at a farm house nearly ten miles away at the time that the bank was robbed. Their testimony would thus tend to establish a complete alibi. The showing also sets forth that, according to the state's theory, the said Brown was supposed to be defendant's partner in the hold-up (there were two gunmen together in the bank), and that confrontation by him upon trial would greatly assist the defendant in his defense. Taking the defendant's undisputed affidavit for it, Brown and his wife were undoubtedly material witnesses. Yet on the alibi, which was a matter of chief defense, their testimony would have been merely cumulative. Defendant had, as it was, some six witnesses who testified to practically the same state of facts which he would have attempted to prove by them. One of the essential averments of a showing for continuance is that the thing to be testified to by the absent witness cannot be proved by the testimony of any other witness. A showing that cumulative evidence can be had by the delay requested is not ordinarily enough to compel a continuance.
It is apparent, too, when the record is read, that the notion that the state's theory was that Brown, rather than Boyd or some one else, was the second gunman in the robbery was more fancied than real. And it is also probable that the chances of identification or nonidentification upon confrontation would have been about equal. However, conceding that Brown was most necessary as a witness for the defendant, the failure to have him present at the trial must be charged to the defendant's own fault. It affirmatively appears in his affidavit that he told him that the trial would not occur until fall, and allowed him, if he did not encourage him, to drop out of sight. Nor does it appear that he made the proper effort to find him and have him present. The trial judge did not abuse his discretion in overruling the motion. No reversal should be had in this court for the refusal of a trial court to grant a continuance upon application of a defendant, unless there has been an abuse of sound legal discretion on its part. Dilley v. State, 97 Neb. 853, 151 N.W. 946.
Complaint is made because attorney B. F. Good was appointed to assist in the prosecution. Section 4916. Comp. St. 1922, provides that assisting counsel may be appointed in a felony case at the instance of the county attorney and under the direction of the court. The practice has had recognition and approval in this court. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116; Bush v. State, 62 Neb. 128, 86 N.W. 1062. The appointment was upon the application of the county attorney and upon the order of the court. It seems to have been duly made. Much space has been consumed in the briefs upon the right of the attorney general to appoint counsel and to take a hand in prosecutions here and there over the state, the defendant contending that the department of justice act (Laws 1919, ch. 205), under which the latter assumed to act (the attorney general also appointed Mr. Good), is unconstitutional as creating a new executive department. An interesting question is thus raised, though it would seem, as the state argues, that no more is attempted in the act than to enlarge the powers of the attorney general without in the least creating a new department. But it is unnecessary to decide or to discuss this, as we are all of the opinion that the court had ample power to appoint under the law as it was before the enactment of 1919.
Error is assigned because the information was drawn in the disjunctive, and because the law under which the prosecution proceeded is what counsel for the defense terms "confusion's masterpiece," and of no effect. The act is certainly a bunglesome piece of English. It is as follows:
"That whoever enters any building occupied as a bank, depository or trust company and by violence or by putting in fear any person or persons in charge of or connected with...
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