State ex rel. Hoffman v. Alter , 84 Neb. 456 ( 1909 )

Reese, C. J.

This was an application to the district court for writ of mandamus directed to I. W. Alter, the police judge of the city of Wayne. The prayer of the petition is that he be compelled to strike out certain portions of his docket entry in a case in which the relator was under arrest charged with selling intoxicating liquors to minors. It is alleged in the petition that relator was informed against jointly with two others; that separate trials were demanded; that upon the day set for trial relator was not placed upon his trial; that no witnesses were sworn or examined; that the respondent assessed a fine against him without arraignment or plea to the complaint; that respondent made false entries in his' docket showing the examination of a number of witnesses when none had been sworn; that facts which should have been stated and recited in the docket were omitted; and that a correct docket entry had been demanded, but had been refused. Relator had instituted appellate proceedings, and at the time of the hearing the principal case was pending in the district court on appeal. Respondent filed an answer, denying the principal averments of the petition as to the condition of the docket, but which need not be set out here. Under the issues thus formed, a trial was had in the district court and the writ denied. Relator has appealed to this court.

The oral evidence introduced was conflicting, the witnesses contradicting each other in the most positive terms upon all matters supposed to be material to the inquiry. There was ample evidence, however, to sustain a finding of the district court that, when the three parties were brought before respondent as police judge, they pleaded not guilty and demanded separate trials, and that one of the accused, Ramsey by name, was put upon his trial and the witnesses duly examined. It appears that Ramsey was a licensee and the proprietor of the saloon, and relator and another were his bartenders. After the examination of the witnesses in the trial of Ramsey, it was stated by the county attorney that the same witnesses would be called in the trial of relator, and their testimony would be the same except that it would appear that relator was not a licensee. We quote the following from the testimony of the county attorney: “A. The evidence in the trial of the Ramsey case had been received, and the state had rested. The defense rested without introducing evidence. I asked counsel for the defendant if they also wished to waive argument, and Mr. Berry replied that it all depended on what I (Wilbur) had to say in my opening argument. I made a brief opening argument, and the defendants’ counsel waived argument. Q. You are now referring to the Ramsey case? A. Yes, sir. The question then arose, I don’t remember who brought it up, as to whether we should at once proceed with the trial of the other two cases. I made the statement that the testimony in the other two cases would be the same as that already introduced in the Ramsey case. One of the counsel for defendant remarked that that statement had best be amended by saying that we could not prove that. Thompsen and Hoffman were licensees. That was agreed to. The matter was talked over by and between all four attorneys, and it was agreed by the four attorneys that instead of continuing in the course of the next two trials, and reoffering and receiving all this evidence, it might be considered by the court as having already been offered and received, and that he could make his finding and judgment in the three cases at one and the same time, and upon the same evidence, and that the records of the three cases should be made up separately, showing a separate trial in case of each of tbe three defendants, and that said records should all be alike. That is as I remember what occurred. Q. You state the fact, whether or not this was before or after the judgment was rendered and the fine imposed in the Ramsey case, Mr. Wilbur. A. This agreement took place before the justice had made any finding in the Ramsey case. He made the findings and entered judgment in all three cases at one and the same time.” Others testified to substantially the same facts. Upon this evidence the police judge found all the defendants before him guilty and imposed the fine assessed. From that judgment relator appealed to the district court, and his appeal was pending at the time of the trial of this case. Upon the state of facts found by the district court, supported as it was by sufficient evidence, it is plain that there is no merit in the relation, and that the judgment of that court refusing the writ and dismissing the case was right.

The judgment of the district court is

Affirmed.

Fawcett, J., not sitting.