Dodge v. People , 4 Neb. 220 ( 1876 )

Maxwell, J.

The first error assigned is that the court had no jurisdiction.

The plaintiff in error was indicted and tried in Otoe County, for the murder of James McGuire in the unorganized county of Chase. The act approved Feb. 25, 1875, provides that “it shall be lawful for the judge of any judicial district court within the state of Nebraska, when it is made to appear to him that a crime has been committed, amounting to a felony, within any unorganized county or territory, or in any county where no terms of the district court are held, attached to or in his said district for judicial or other purposes, to designate the county in his district wherein the alleged offense may be inquired into by the grand jury, and in case an indictment is found, the person or persons so indicted tried; provided, nothing herein contained shall prevent the person or persons so indicted, upon a legal and proper application, removing the trial thereof to some other county in the same judicial district.”

At common law in general, offenses could be inquired into as well as tried, only in the county where they were committed. 4 Blackstone Com., 305. Yet there were many exceptions to the rule. Id., 304. Section four hundred and fifty-five of the criminal code provides, that all offenses shall be tried in the county in which they are committed, unless for cause the venue is changed. The act above quoted, so far at least as it applies to unorganized counties, is clearly within the power of the legislature. Such counties having but few inhabitants, and being entirely without organization, must from the necessity of the case be attached to some other county in the same judicial district for judicial purposes. The right to designate the county is properly left with the judge of the district court, who being supposed to be entirely free from bias, may reasonably be exjiected to designate a county in his district where a fair and impartial trial can be had. If the county designated is too remote from the place where the offense is alleged to have been committed, so that material witnesses cannot be procured to attend the trial, or if from any cause a fair and impartial trial cannot be had in the county designated, the defendant has a right, on a sufficient showing being made to the court, to have the cause removed to some other county in the same district for trial, In the case at bar, no distinct copy of the order of the court designating Otoe County is found in the bill of exceptions, but the indictment contains an averment that Otoe County was so designated by the judge of the district court. It also appeal's from the bill of exceptions, that defendant’s counsel moved to quash the indictment, alleging among other grounds that the court had no jurisdiction of the cause, which motion was overruled by the court. We think, therefore, that sufficient appears on the record to show that the court'had jurisdiction of the case.

It is claimed that the record does not show that the prisoner was present in court during the trial, nor at the time sentence was pronounced. It appears from tlie record, that the prisoner was duly arraigned and plead not guilty, that he was present during the time the jury were being impaneled, that after the evidence was closed he filed instructions with the cleric and excepted to the instructions given by the court on its own motion, but the record is silent as to whether the prisoner was present in court or not, at the time the jury returned their verdict. The rule is well established, that in all cases of felony the prisoner must be present in court during the trial, and at the time the verdict is received, and no valid judgment can be predicated on a verdict received in the absence of the prisoner. At common law, the finding of the jury of the guilt of the accused, was conclusive of that fact, and the court possessed no power to set the verdict aside and grant a new trial on the merits, on the motion of the accused, even where the verdict was clearly against the weight of the evidence. Hilliard, on New Trials, 114. Queen v. Bertrand, 1 P. C., 520. The King v. Fowler, 4 Barn. & Ald., 275. 1 Ch., C. L., 653. Neither was counsel allowed a prisoner upon his trial on the general issue, in any capital crime, unless some point of law arose proper to be discussed. 4 Blaclcstone Com,., 355. To guard against this provision of the common law, the constitution of the United States provides, that in all criminal prosecutions the accused shall have the assistance of counsel for his defense. Nor must it be forgotten, that among the variety of actions that men are liable to commit, one hundred and sixty were declared to be felonies without benefit of clergy, the punishment of which was death. 4 Blackstone, 19. Therefore the utmost caution was required in capital trials, in favor of life, and if an irregularity materially affecting the trial occurred to the injury of the accused, the court usually represented such matter to the crown, and a pardon was granted. Commonwealth v. Green, 17 Mass., 534. Now, however, in the court of Queen’s Bench, when the record is before that court and it appears that evidence has been improperly admitted, or the jury have been misdirected, a new trial may be granted in cases of felony. Rex v. Scaife, 2 Den., C. C., 281. 17 Q. B., 238; and a person accused of crime is allowed the assistance of counsel to conduct his defense. In this country the almost uniform prac- ' tice has been to extend to criminal cases, so far as the revision of verdicts is concerned, substantially the same principles which have been established in civil cases; and by statute in this state, after a verdict of guilty, a defendant may move for a new trial, on any or all of the grounds therein set forth. And it is his duty, in such a case, to bring before the court, by his motion, all the reasons which are known to exist for setting aside the verdict and granting a new trial. There is no reason why the same rule in that respect should not apply in criminal as in civil cases. In this case, in the twenty-three grounds assigned in the motion for a new trial, there is no allegation that the prisoner was not present in court; the only irregularity complained of in the proceedings of the court is in overruling the motion of the prisoner to quash the indictment. The presumption is that the court performed its duty and that the prisoner was in court at the time the verdict of the jury was received. In the case of Beale v. The Commonwealth, 25 Penn. State, 18, the court held “we are not to expect too much from the records of judicial proceedings. They are memorials of the judgments and decrees of the judges, and contain a general but not a particular detail of all 'that occurs before them. If we must insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and j>resumption, for it is often less difficult to do things correctly than to describe them correctly.” And in Rhodes v. The State, 33 Ind., 24, the court held: “In this case the prisoner is shown by the record to have been present in court at the commencement of the trial. The record is silent as to where he was at the return of the verdict. We presume he was in court.” See also, Brown v. The State, 13 Ark., 100.

It is alleged that there was error in impaneling the jury in the case, and. in summoning talesmen. It appears that eleven of the regular panel of petit jurors were absent or excused, and that the court ordered the sheriff to summon eleven good and lawful men from the body of the county to fill up the panel, which appears to have been immediately complied with. The counsel for the prisoner challenged each of these talesmen, because their names _ did not appear on the “ venire of the original panel of jurors summoned,” which challenge was overruled by the court, and the prisoner thereupon excepted. Section four hundred and sixty-six of the criminal code provides that “in all criminal cases, except as otherwise provided, the jury summoned and impaneled according to the provisions of the laws in force relating to the summoning and impaneling of juries in other cases, shall try the accused.” Genl. Stat., 825. It is further provided that a person arraigned for a crime punishable with death, shall be admitted on his trial to a peremptory challenge of sixteen jurors, and the state to a peremptory challenge of six jurors. Section six hundred . and sixty of the civil code provides that “twenty-four names shall be drawn, and the persons whose names are so drawn shall be the petit jurors.” Section six hundred and sixty-four provides that “whenever the proper officers fail to summon a grand or petit jury, or when all the persons summoned as grand or petit jurors do not appear before the district court, or whenever at any general or special term, or at any period of a term, for any cause, there is no panel of grand or petit jurors, or tlie panel is not complete, said court may order the sheriff, deputy sheriff, or coroner, to summon without delay, men having the qualifications of jurors.” Genl. Stat., 643.

The district court certainly has authority, on sufficient cause being shown, to excuse a grand or petit juror, and unless there is a clear abuse of that authority to the prejudice of the accused, the matter will not be reviewed in this court. It is apparent that it was not the intention of the legislature to limit the number of jurors to those drawn on the regular p>anel. If that were so, it would be in the power of the accused, in a case like this, to prevent a trial altogether. It is the duty of the court to see that a party accused of crime, has a fair trial before a fair and impartial jury, and to secure this the court has full power and authority to direct the sheriff to summon as many talesmen as may be deemed necessary to secure an unbiased jury, and no special venire is necessary for that purpose. There is nothing in this case from which it can be inferred that there was any bias or prejudice in the minds of the jurors, so summoned, against the accused, nor does it appear that he was prejudiced in the least.

A motion in arrest of judgment, under our statute, applies only to the jurisdiction of the court and the sufficiency of the indictment, and was properly overruled.

It is alleged that the court erred in refusing to give certain instructions in regard to the confession of the accused. The rule is well settled that to make a confession admissible in any case, it ought to appear that it was made voluntarily and without inducement of any kind, and the evidence of verbal confessions of guilt is to be received with great caution. A confession alone ought not to be sufficient evidence of the corf us delicti. There should be other proof that a crime has actually been committed, and the confession should only be allowed for the purpose of connecting the defendant with the offense. Cooley’s Con., Lim., 315. Stringfellow v. The State, 26 Miss., 157. The People v. Henessy, 15 Wend., 147. 1 Greenleaf Ev., 217.

None of the testimony in the case is before us. We know nothing of the nature of the alleged confession, to whom made, its extent, or whether corroborated or not. Instructions should be given with reference to the evidence in each particular case, and questions of fact should be fairly submitted to the jury. Ordinarily, the degree of credit, to be given to. a confession, is to be left to the jury under the circumstances .of each case. From the record before us there is nothing to show that the court erred in refusing the instructions asked by the prisoner.

The prisoner excepted to the instructions given by the court on its own motion, in these words: “To this

charge and every part thereof the defendant then and there excepted.” This is a general exception. The-rule is well settled in this court that each specific portion of instructions which is claimed to be erroneous, must be distinctly pointed out and specifically excepted to. McReady v. Rogers, 1 Neb., 124. Strader v. White, 2 Neb., 360. Schryver v. Hawks, 22 Ohio State, 308. Although this rule will not be as rigidly adhered to in criminal as in civil cases, where it is clear the instructions could not be applicable in any possible view of the case, and that they wrere calculated to mislead the jury. But the instructions given in this case are substantially correct in principle.

It is unnecessary to take up the numerous assignments of error in detail. We have carefully examined the record and -can find no error, up to the return of the verdict, of which the prisoner can complain. The verdict of guilty will therefore be permitted to remain undisturbed.

Section four hundred and ninety-five of the criminal code provides that “before the sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, and asked whether he has anything to say why judgment ’should not be pronounced against him.” Genl. Stat., 832.

It does not appear from the record that this requirement of the statute was complied with, or that the prisoner was present in court at the time sentence was pronounced, and counsel for the prisoner insist that there being error in this, we have no authority to either pass sentence, or remand the cause to the district court with instructions to pronounce sentence in conformity to law, and therefore the prisoner must be discharged.

We are aware that cases can be found, holding under a statute similar to ours, that there is no authority in this court either to resentence the prisoner, or remand the case to the court below for that purpose. We may correct errors in any other respect, review the proceedings of the district court, see that the accused has had a fair trial, and that his rights have been properly guarded and secured, but the moment it appears that the court has not fully complied with the law in pronouncing sentence, it is at once ousted of jurisdiction and the accused must go aquit. This doctrine, originating in England at a time when the courts of that country held that they had no authority to revise proceedings and judgments in cases of felony, and grant new trials, partakes of the reasoning of that period, that the judgment in a criminal case was absolute, unless a pardon was granted, that if the judgment did not conform to the law there was no power of revision or amendment, and as the prisoner could not be held on an invalid judgment he must therefore be discharged. This doctrine was expressly overruled in King v. Kenworthy, 1 Barn. & Cress., 711, and in Regina v. Halloway, 5 Eng. Raw and Equity, 310; and tlie English courts now hold that they have full authority in such cases to impose the sentence required by law. In the case of Beale v. The Commonwealth, 25 Penn. State, 22, the court held: “the common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether, because the court committed error in passing sentence. If this court sanctioned such a rule, it would fail to perform the chief duty for which it was established. Our duty is to correct errors and ‘minister justice,’ but such a course would perpetuate error, and produce the most intolerable injustice.” And to the same effect see Benedict v. The State, 12 Wis., 313. Williams v. The State, 18 Ohio State, 46. Richett v. The State, 22 Ohio State, 405.

A person convicted of felony cannot waive his right to be present in court, at the time sentence is pronounced, and he must be “ informed by the court of the verdict of the jury, and ashed whether he has anything to say why j udgment should not be pronounced against him.” As it does not appear that these requirements of the statute have been complied with, the judgment must be reversed, and an order directed to the coiu’t below, to proceed to render judgment on the verdict in the manner prescribed by law. In the language of Judge Dixon in Benedict v. The State, 12 Wis., 313, “ this course appears to us not only rational and correct, but the only one which in many cases will save the justice of the state, in criminal proceedings, from being entirely defeated through the mistakes or oversights of clerks and other officers, in matters not reached or at all affecting the merits of the controversy or the legal rights of the accused.”

This case is therefore remitted to the court below with directions to proceed to pronounce judgment on tlie verdict in the manner prescribed by the statute.

Judgment reversed and procedendo awarded.