McKay v. State

Fawcett, J.

When our opinion was handed down in this case (90 Neb. 03) the county attorney of Antelope connty requested, and the attorney general directed, a mandate to go down. Subsequently, axid within 40 days from the filing' of the opinion, the private prosecutor employed by the relatives of the deceased requested and was given leave to file a motion for a recall of the mandate and for a rehearing of the case. Upon the filing of the motion argument thereon was ordered and has been had. The case is now before us on that motion, for review.

Counsel for defendant has entered objections to a further consideration of the case in this court for various reasons which we deem it unnecessary to set out. It is sufficient to say that we permitted the filing of the motion for rehearing and must. now decline to dispose of it without consideration, Defendant’s objections are therefore overruled.

Upoxx the original hearing we held the information originally filed to be void. This holding is now assailed. The writer is satisfied with our former holding and is still of the opinion that the information was void. A majority of the court, however, are of oipinion that this is stating the matter too strongly; that the information was defective merely, but not void. Paragraphs 1, 2 and 3 of the syllabus of the former opinion are, therefore, hereby modified so as to read as follows:

1. An information is defective if it charges the commission of the offense as subsequent to the date upon which the information is filed, or on an otherwise impossible date.

2. And in such a case it is error for the trial court, after permitting an amendment curing such defect, to require the accused, oyer his objection, to immediately proceed with the trial without arraignment under and plea to such amended information and without giving him the statutory time of 24 hours in which to plead thereto.

3. Where one accused, of a felony is put upon, trial under an information defective upon its face, and, after trial begun, the in forma.lion is amended and the trial proceeded with, there being no change in the offense charged, held, that the accused is not thereby placed in jeopardy a second time.

That portion of the opinion upon which the above three paragraphs of the syllabus are. predicated is also modified so as to conform therewith.

Our opinion in relation to the employment of private counsel, as embodied in paragraphs 4, 5 and 6 of the syllabus, is next assailed. We deem it unnecessary to again discuss that question. We are satisfied with our former opinion upon that point and adhere thereto. This case, presents a good illustration of the, sufficiency of the reasons which prompted the legislature to amend the statute in relation to the employment of private counsel in felony cases, and of the soundness of our former holding. Here we have private counsel, employed by relatives of the deceased, not only dominating the trial of a felony case in' the court below, 'but obtruding himself into this court, after the attorney general and the county attorney had accepted the opinion and obtained the issuance of a mandate, and attempting to further serve his private clients by a persistent contention at variance with the, orderly i-ourse then being pursued by the able prosecuting officers of the state.

Our opinion as reflected in paragraph 7 of the syllabus is next assailed. An attempt is made to justify the offering in evidence of the blood-stained garments of the deceased upon the theory that the evidence shows that the defendant was seen leaving the house of the deceased early in the morning of the day when the body was discovered, and that'this evidence would show that the deceased was murdered after arising in the morning. It had already been shown by the testimony of the persons who first found tlxe body of the deceased that, at the time they made the discovery, the body was lying at the foot of the cellar stairs, fully dressed, with the bloody ax, with which the deed had evidently been committed, lying beside it. This undisputed testimony established the fact that at the time of the murder tiie deceased was fully dressed; but neither that testimony nor the blood-stained garments themselves would prove that he had been murdered after arising in the morning, any more than they would prove that he had been murdered before the time for retiring the evening before. No attempt to disguise the motive of counsel in offering these blood-stained garments in evidence can obscure the fact that the real motive was for the purpose of exciting the passions of the jury. We are satisfied with our former holding and adhere thereto.

The motion for rehearing is therefore overruled, and our former opinion, modified as above set out, is adhered to.

Former opinion modified.

Reese, C. J., not having heard the arguments upon the motion, took no part.