State ex rel. Bryant v. Louver

• Citation: 26 Neb. 757,42 N.W. 762
• Parties: STATE EX REL. BRYANT v. LOUVER, JUDGE.
• Decision Date: 13 June 1889
• Court: Supreme Court of Nebraska

26 Neb. 757

42 N.W. 762

STATE EX REL. BRYANT

v.LOUVER, JUDGE.

Supreme Court of Nebraska.

June 13, 1889.

Syllabus by the Court.

1. A complaint in writing, signed by the complainant, and sworn to before the clerk of the district court within his jurisdiction, and filed in the office of the justice of the peace, would be sufficient to require him to issue a warrant thereon.

2. Where a criminal statute is descriptive of the offense which is declared to be a crime, an information or complaint filed before a justice of the peace, the charging part of which is in the language of the statute, will be held sufficient.

3. Section 28, c. 61, Laws 1881, commonly known as the “Slocomb Law,” held constitutional, so far as this case is concerned, without a discussion of the question.

Mandamus.

Wilber F. Bryant, relator, pro se.

Ephraim Lauver, respondent, pro se.

REESE, C. J.

This is an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus to the defendant, who is the county judge of Cedar county, requiring him to issue a warrant upon a complaint filed before him charging one Andrew Anderson with the crime of having been found in a state of intoxication. We quote the following from the transcript of the county judge: “The State of Nebraska against Andrew Anderson. Be it remembered that on the 26th day of November, 1888, the following complaint was filed in the office of the county judge of Cedar county, Nebraska, to-wit: ‘The State of Nebraska, Cedar County-- ss.: Before me, E. Lauver, county judge in and for Cedar county, personally appeared Wilber F. Bryant, who, being duly sworn as hereinafter certified, says that Andrew Anderson, late of the county aforesaid, on the 23d of November, in the year of our Lord one thousand eight hundred and eighty-eight, in the county of Cedar and state of Nebraska, aforesaid, was found unlawfully in a state of intoxication, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska. WILBER F. BRYANT. Subscribed in my presence, and sworn to before me, this 26th day of Nov., 1888. FRANS NELSON, Clerk District Court.’ [Seal.] Thereupon the said Wilber F. Bryant tendered the lawful fee, and demanded that a warrant be issued for the arrest of the said Andrew Anderson. Though I have reasonable grounds to believe that the facts set forth in the foregoing complaint were true, yet I refused to issue the warrant, as requested, for the following reasons, to-wit: First, that the complaint was not sworn to before the proper officers; second, that the complaint does not charge any person with any offense against the laws of the state. E. LOUVER, County Judge.”

The answer consists-- First, of a general denial of the allegations of the petition; second, a specific denial of the truth of the allegations contained in the relation, or that the relator is a citizen of the United States, or of the state of Nebraska. It is alleged that the relator himself was born in the United States, to-wit, in the state of New Hampshire, but that his ancestors were born in Ireland, and were not citizens of the United States, and it is alleged that relator's father had been a soldier in the United States army. From the whole tenor of the answer in this particular it is apparent that the denial of the citizenship of the relator is not relied upon by respondent; neither could it be successfully. By the docket of the county judge it appears that he refused to issue a warrant upon two grounds: First, that the complaint was not sworn to before the proper officer. There is no force in this objection. Section 1, c. 62, Comp. St., provides that “oaths and affirmations may be administered in all cases whatsoever by judges of the supreme courts, judges of the district courts, clerk of ...