Tasich v. State

• Decision Date: 31 December 1923
• Docket Number: 23461
• Citation: 196 N.W. 688,111 Neb. 465
• Parties: JOHN TASICH v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

196 N.W. 688

111 Neb. 465

JOHN TASICH v. STATE OF NEBRASKA

No. 23461

Supreme Court of Nebraska

December 31, 1923

ERROR to the district court for Douglas county: CHARLES A. GOSS JUDGE. Affirmed.

AFFIRMED.

E. R Leigh, for plaintiff in error.

O. S Spillman, Attorney General, and Lee Bayse, contra.

Heard before MORRISSEY, C. J., GOOD and ROSE, JJ., REDICK and SHEPHERD, District Judges.

OPINION

SHEPHERD, District Judge.

This action was on an information for constructive contempt. The defendant, John Tasich, plaintiff in error in this court, was charged with attempting to corrupt a juror in order to obtain a verdict of acquittal for his brother, Joe Tasich, who was on trial for shooting with intent to kill. Trial was had to the court. Plaintiff in error was found guilty, and was sentenced to six months in the county jail of Douglas county.

The evidence fully supports the conviction. During the trial of Joe Tasich before referred to, the plaintiff in error went quite directly from the courtroom to the flour mills where the juror in question was employed and accosted the sales manager, one Pravitz, telling him that his brother was on trial that day and that the mills had a man by the name of Bastain on the jury. He wanted to talk to Bastain and explain to him that his brother was not present at the shooting. Pravitz went to Bastain's room to take the matter up with him, but the latter, who was duly regardful of his juror's duty, told him that it would not be lawful for him to discuss the matter. Thereupon Pravitz returned to his own office, where Tasich, the plaintiff in error, was waiting, and informed him that Bastain was not in, but that he would see him and tell him about it. Tasich asked him to tell Bastain to come to his house that evening in order that he might explain to him. He also suggested to Pravitz that he would come to Pravitz's house that evening, and that together they could go and see Bastain about it. To the credit of Mr. Pravitz it should be said that he did not attempt to advise Bastain of what Tasich said to him. Tasich was a customer of the mills, and for the rest it may be said that in all probability the sales manager did not see fit to repulse him harshly or to dismiss him peremptorily, though well understanding his design. It further appears that plaintiff in error had been present in court during the trial of his brother, where he could hear the instructions of the judge warning the jury not to permit outsiders to talk to them about the case. More than that he was himself personally called to the bench and admonished by the judge not to interfere with the proceedings by talking to the witnesses, and by threatening them. It is quite obvious that the trial judge was justified in finding that Tasich was guilty as charged. The evidence was such as to convince the judge or jury that this was the case.

From the foregoing it will be clear that the court finds no merit in the contentions of the plaintiff in error that the judgment was contrary to law, and was not sustained by the evidence. This disposes of assignments 1 and 2 relied upon for reversal.

The main assignment of error is to the effect that the information was not verified positively, but only upon information and belief, and was accordingly not sufficient in law to confer jurisdiction upon the court to punish plaintiff in error for contempt. In the case of Belangee v. State, 97 Neb. 184, 149 N.W. 415, it was held that an affidavit alleging material facts on information and belief does not give a court jurisdiction in a contempt proceeding. The case is in point. But we are not inclined to adhere to the rule therein announced, because it is not supported by the weight of authority, not well reasoned, and not in accord with the tendency which now obtains in Nebraska to minimize the force of merely technical defenses in criminal practice. In said case there is a strong dissenting opinion, concurred in by two of the other justices of the supreme court, which is entirely persuasive to us in its reasoning. A part of that opinion is as follows:

"The opinion assumes that the evidence is sufficient, and disposes of the case on the insufficiency of the information. The statute makes the acts charged a crime that may be punished by indictment or preliminary examination and information and jury trial, or as a contempt of court. Section 8238, Rev. St. 1913, provides that punishment for contempt shall not be a bar to indictment and trial by jury.

"In this case there was no indictment nor preliminary examination. The information states the facts constituting the contempt of court, and then says: 'In contempt of the said district court, and its dignity.' It is a proceeding for contempt. It contains some allegations that would be necessary in an indictment, and probably some other surplusage, but this would, of course, not invalidate the information, if otherwise sufficient. The allegations of the information are positive, but the verification by the county attorney is upon belief. The opinion holds it void because of the form of the verification. The question naturally arises: How can a prosecution for contempt in such case be instituted? It will rarely, perhaps never, happen that one person will of his own knowledge know all the facts necessary to constitute the offense. It would seem that the statute which provides that 'the party, upon being brought before the court, shall be notified of the accusation against him, and have a reasonable time to make his defense' (Rev. St. 1913, sec. 8237), does not contemplate any very formal proceeding. This statute seems to be all that there is in the statutes in regard to information or proceeding for constructive contempts. It may be that this court in some earlier cases has gone too far in adding formalities. The cases cited in the opinion, Ludden v. State, 31 Neb. 429, 48 N.W. 61 (violation of an injunction), the prosecution was to enforce property rights, and neither the affidavits nor evidence showed that the defendant had anything to do with violating the injunction; Herdman v. State, 54 Neb. 626, 74 N.W. 1097 (injunction); Gandy v. State, 13 Neb. 445, 14 N.W. 143 (attempt to bribe witness); and Hawthorne v. State, 45 Neb. 871, 64 N.W. 359--all hold that the information must state the facts positively; that is, the 'accusation' against the defendant, of which he must be notified and have time to make defense (section 8237), must be in direct and unequivocal terms, and not guesswork. None of them holds that it must be positively verified, and in one of them (Gandy v. State) it would seem there was no verification at all, but that fact is not discussed.

"If knowledge of an attempt to bribe jurors comes to the court, it may, and should, direct the prosecuting attorney to investigate, and, if sufficient evidence is found, prosecute. The county attorney cannot make the verification under this decision, and there is no provision to compel witnesses who knew the facts to make complaint. It would seem, then, that proceedings for contempt in such cases are done away with by the opinion. There remains the slow and doubtful prosecution by indictment or preliminary examination, but this leaves the court helpless for the time being. He might adjourn the term until a grand jury or examining magistrate could act."

It is certain that a trial court should not be reduced to this extremity. Contempt proceedings are not only salutary but necessary upon occasion. Yet it is extremely difficult to get the citizen to sign a charge against another citizen. The charge naturally and properly becomes the duty of the county attorney. Nevertheless, as in most criminal cases, the county attorney has no personal knowledge of the facts and cannot make an affidavit except upon information and belief. Must the proceeding fail because of the lack of positive verification? Positive verification can serve no purpose except to give weight to the statement of fact. Such verification is, and should be, only for the private citizen who makes...