Van Buren v. State

• Decision Date: 18 June 1902
• Citation: 91 N.W. 201,65 Neb. 223
• Parties: VAN BUREN ET AL. v. STATE.
• Court: Nebraska Supreme Court

65 Neb. 223

91 N.W. 201

VAN BUREN ET AL.

v.STATE.

Supreme Court of Nebraska.

June 18, 1902.

Syllabus by the Court.

1. The preliminary hearing of a person accused of a felony, provided for by the Criminal Code, is in no sense a trial in which the rights of the accused in respect of his guilt or innocence are adjudicated and determined.

2. The preliminary examination provided for is to ascertain whether the crime charged has been committed, and, if so, whether there is probable cause to believe the accused committed it, and, if such is found to be the case, to enforce his presence in the district court to answer the charge, by either requiring the accused to enter into a recognizance for his appearance in the district court to answer the charge, or, in default thereof, committing him to imprisonment to await trial in the district court.

3. Where a person who is charged with a felony is brought before an examining magistrate for the purpose of a preliminary hearing, the complainant at such hearing may dismiss or abandon such proceedings, and file a complaint for the same offense before another magistrate having authority to inquire into the charge; and upon such inquiry the accused may be recognized to appear at the district court to answer such charge, and, in default of such recognizance, be committed to prison to await trial.

4. And likewise a second preliminary hearing may be had where the first has resulted in a discharge of the accused.

5. A district judge, within his district, is authorized to exercise the powers of examining magistrates generally with respect to preliminary hearings of persons accused of the commission of a felony.

6. The bringing into this state of goods or property stolen in another state is not larceny. People v. Loughridge, 1 Neb. 11, 93 Am. Dec. 325.

7. Instruction set out in the opinion authorizing a conviction of the crime of larceny where property has been stolen in another state, and brought by the thief into this state, held erroneous.

Error to district court, Cherry county; Westover, Judge.

George Van Buren and another were convicted of larceny, and bring error. Reversed.Allen G. Fisher, for plaintiffs in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

HOLCOMB, J.

The plaintiffs in error, McLaughlin and Van Buren, who were defendants in the trial court, were informed against, and by the verdict of a jury found guilty of stealing a mare of the value of $15, the personal property of one John Ray; the larceny charged being alleged to have been committed in Cherry county. After the overruling of a motion for a new trial and a motion in arrest of judgment, the defendants were sentenced to imprisonment in the penitentiary for a period of 7 and 5 years, respectively, and adjudged to pay the costs of prosecution. By proceedings in error the defendants bring the record of conviction here for review. Many alleged errors are assigned as grounds for reversal of the judgment of the trial court, a few only of which will be noticed and considered.

The preliminary examination for the purpose of inquiring whether an offense had been committed, and whether there was probable cause to believe the defendants guilty thereof, was had before the judge of the district court, sitting as an examining magistrate. It appears from the record that a complaint charging the defendants with the crime of which they were afterwards convicted in the district court was filed with the county judge of Cherry county, who issued a warrant thereon, and after the arrest of the defendants, and their appearance before him, on their application, granted a continuance of the hearing on the complaint charging them with the commission of the alleged offense for a period of 30 days, whereupon another complaint, charging the same offense, was filed with a justice of the peace acting as an examining magistrate, upon which a warrant was issued, and the defendants brought before him for a preliminary hearing. On the defendants' application the justice of the peace granted a change of venue to another justice in a distant part of the county. A third complaint was then immediately filed with the district judge, and the defendants brought before him, where a preliminary hearing was had, resulting in their being held to the district court, to answer the charge preferred against them. After the filing of an information against them in the district court, the defendants presented a plea in abatement on the ground that the district judge had no jurisdiction or authority to act as an examining magistrate, and also because of the proceedings had before the county judge and justice of the peace alluded to. It was objected that the preliminary hearing of the charge preferred against them was yet pending and undetermined, and that the filing of an information in the district court under such circumstances was without warrant or authority of law, and therefore invalid. The record, we are prone to say, presents in this regard an extraordinary condition of affairs, and shows an undue activity on the part of the prosecution to force the defendants into a preliminary hearing without having a due regard to their rights, or the proprieties which should characterize proceedings of the kind then engaged in. We apprehend the spirit of the law requires that such proceedings should be conducted with deliberation, and with every reasonable opportunity accorded to those accused of crime to show either that no offense has been committed, or that there is no probable cause for believing them guilty of the offense charged. The state, with all the powers at its command, should not be made an instrument of oppression, nor be permitted to resort to unnecessarily harsh measures in order to bring an accused to a speedy trial, who, although accused of crime, is presumably innocent until guilt is established in the manner provided by law. A preliminary hearing, however, is in no sense a trial in which defendants' rights, in respect of their guilt or innocence, are adjudged, determined, or prejudiced, whether a hearing results in the discharge of an accused person, or in holding him to appear at the district court to answer the accusation made against him. In re Garst, 10 Neb. 78, 4 N. W. 511;Latimer v. State, 55 Neb. 609, 76 N. W. 207, 70 Am. St. Rep. 403. The preliminary examination is to ascertain whether the crime charged has been committed, and, if so, whether there is probable cause to believe the accused committed it, and, if such is found to be the case, to enforce his presence in the district court to enter into a recognizance for his appearance in the district court to answer the charge, or, in default thereof, committing him to imprisonment to await trial in the district court. Latimer v. State, supra. It is not required that the accused, where a complaint is filed charging the commission of a felony, should be taken before the magistrate issuing the warrant; but he may be taken before any magistrate having authority to make inquiry as to the truth of the complaint, and whether there is probable cause for believing the...