State v. Adams

• Decision Date: 16 December 1966
• Docket Number: No. 36307,36307
• Parties: STATE of Nebraska, Appellee, v. Ernest A. ADAMS, Appellant.
• Court: Nebraska Supreme Court

Page 144

147 N.W.2d 144

181 Neb. 75

STATE of Nebraska, Appellee, v. Ernest A. ADAMS, Appellant.

No. 36307.

Supreme Court of Nebraska.

Dec. 16, 1966.

Syllabus by the Court

1. In determining the sufficiency of the evidence to sustain the conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.

2. An allegation in a plea in abatement that members of the negro race were excluded from service on the grand jury is not sufficient as against a demurrer unless intentional or systematic discrimination against the members of the defendant's race is alleged.

3. The only objection to the grand jury which can be made by a plea in abatement is to show that the jurors lacked the positive qualifications demanded by law.

4. Section 28--708, R.R.S.1943, relating to the attempted bribery of a public officer is not invalid as vague and indefinite.

5. An information or indictment must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to later prosecution for the same offense.

6. It is generally sufficient to allege the crime in the language of the statute. It is not necessary to state the detailed particulars of the crime in the meticulous manner prescribed by the common law.

7. The right to a separate trial now depends upon a showing that prejudice will result from a joint trial.

8. Where there is proof of a conspiracy, the acts and declarations of a conspirator in furtherance of the conspiracy are the acts and declarations of all and may be admitted in evidence against the other conspirators.

9. The fact of the conspiracy may be proved by circumstantial evidence and the order of proof is a matter within the discretion of the trial court.

10. A witness who testifies from an independent recollection may refresh his recollection by referring to an original memorandum or a copy prepared by himself or another.

11. The manner in which a witness may be examined is within the sound discretion of the court.

12. An instruction that the jury cannot draw any inference from the fact that a defendant did not testify is not erroneous.

13. A motion for new trial fore alleged misconduct of a juror is addressed to the sound discretion of the trial court.

14. As a general rule a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the jury was sworn but which was unknown to the accused until after the verdict, unless it appears from the whole case that the substantial rights of the accused were materially affected by the fact that the juror served in the case.

Thomas P. Kelley, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER and McCOWN, JJ., and MANASIL and HASTINGS, District Judges.

BOSLAUGH, Justice.

The defendant, Ernest A. Adams, was convicted of soliciting, proposing, or agreeing to receive a bribe in violation of section 28--708, R.R.S.1943. His motion for new trial was overruled and he has appealed.

This case arose out of an application to rezone a tract of land at Eighty-first Street and Farnam Drive in Omaha, Nebraska. The application was frist presented to the planning board and then submitted to the city council. The defendant was a member of the city council and voted for the rezoning. The State's theory of the case is that the defendant, in conspiracy with others, solicited, proposed, and agreed to receive a bribe in the amount of $5,000 for a favorable vote on the rezoning application.

The defendant, who was charged by indictment, filed a lengthy plea in abatement attacking the indictment and the proceedings of the grand jury. The trial court sustained a demurrer to the plea in abatement. The defendant contends that the demurrer should have been overruled because the plea in abatement alleges that members of the negro race were excluded from service on the grand jury; that six of the grand jurors had signed recall petitions against mayor James J. Dworak; and that one grand juror had answered a questionnaire by stating: 'Made up my mind from newspapers.'

The demurrer to the plea in abatement was properly sustained. The defendant does not claim intentional or systematic discrimination of exclusion of the members of his race from the grand jury. See 24 Am.Jur., Grand Jury, s. 27, p. 851. In this state the only objection to the grand jury which can be made by a plea in abatement is to show that the jurors lacked the positive qualifications demanded by law. Krause v. State, 88 Neb. 473, 129 N.W. 1020, Ann.Cas.1912B, 736.

The defendant contends that the statute under which he was charged is so vague and indefinite that it is invalid. Section 28--708, R.R.S.1943, provides: 'Whoever offers or attempts to bribe a public officer and every public officer who solicits a bribe or proposes or agrees to receive a bribe in any case shall be fined in a sum not exceeding five hundred dollars nor less than three hundred dollars, and shall be imprisoned in the Nebraska Penal and Correctional Complex for the period of one year.'

We think the meaning of the statute is clear and definite. The Legislature has provided that the attempted bribery of a public officer or the solicitation or agreement to receive a bribe by a public officer shall be a felony. McMartin v. State, 95 Neb. 292, 145 N.W. 695.

The defendant points out that other sections relate to specified circumstances under which attempted bribery or the solicitation of a bribe is only a misdemeanor. These sections do not have the effect of making section 28--708, R.R.S.1943, vague and indefinite even though it may be possible that a particular act may be punishable under more than one section of the law.

The indictment against the defendant originally contained three counts. The first count charged that from June 3, 1964, to September 28, 1964, the defendant as a city councilman conspired with Ronald J. Abboud, Carville R. Buttner, and Steve Novak to accept a bribe for a favorable vote on a rezoning matter. The second count charged that the defendant, as a member of the city council, received $5,000 on September 15, 1964, for a favorable vote on a rezoning matter. A demurrer to these counts was sustained.

The third count, upon which the defendant was convicted, charged that the defendant, from June 3, 1964 to September 28, 1964, '* * * being a City Councilman of the City of Omaha, Nebraska, did unlawfully solicit, propose, or agree to receive a bribe, to-wit: the sum of $5,000.00 from John B. Coleman * * *.' The defendant contends that the demurrer to this count should have been sustained because it did not allege in sufficient detail the circumstances of the crime charged.

An information or indictment must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to later prosecution for the same offense. State v. Buttner, 180 Neb. 529, 143 N.W.2d 907. But it is generally sufficient to allege the crime in the language of the statute. Sadlacek v. State, 147 Neb. 834, 25 N.W.2d 533, 169 A.L.R. 868. It is not necessar to state the detailed particulars of the crime in the meticulous manner prescribed by the common law. Cowan v. State, 140 Neb. 837, 2 N.W.2d 111.

An indictment or information alone need not be full protection against double jeopardy because a defendant may allege and prove facts outside the record in support of a plea of former adjudication. Cowan v. State, supra. The remedy of a bill of particulars is available to assist a defendant in preparing his defense and to protect him against a second prosecution for the same offense. Myers v. United States, 8 Cir., 15 F.2d 977.

In this case Count III of the indictment was in the language of the statute and identified the person solicited, proposed, or agreed with. The particular transaction was alleged in greater detail in the first two counts; and although these counts were dismissed, they did serve some purpose in advising the defendant as to the nature of the charge against him. See Bartley v. State, 53 Neb. 310, 73 N.W. 744. There was no defect or imperfection in Count III of the indictment which prejudiced the substantial rights of the defendant upon the merits. Section 29--1501, R.R.S.1943. The demurrer was properly overruled as to Count III.

Upon the motion of the State, the indictment against the defendant was consolidated for trial with indictments against Ronald J. Abboud and Stephen T. Novak. The defendant's later motion for a separate trial was overruled. The defendant contends Article I, section 6, of the Constitution of Nebraska, which provides that the 'right of trial by jury shall remain inviolate' guarantees the right to a separate trial. The defendant's theory is that the 1957 amendment to section 29--2002, R.R.S.1943, was ineffective because of this constitutional provision.

The constitutional provision was intended to preserve the right of trial by jury as it existed at common law and under the statutes in force when the Constitution was adopted. State v. Hauser, 137 Neb. 138, 288 N.W. 518; Bell v. State, 104 Neb. 203, 176 N.W. 544. The former right to separate trials of defendants who were jointly indicted was statutory in origin. See G.S., s. 465, p. 825. The right was not of common-law origin and was not guaranteed by the Constitution.

The right to a separate trial now depends upon a showing that prejudice will result from a joint trial. State v. Brown, 174 Neb. 387, 118 N.W.2d 328; State v. Hall, 176 Neb. 295, 125 N.W.2d 918. The defendant argues that he was prejudiced in this case...