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BURLEY V. THE STATE.

Burley v. The State.

Per Mason, Ch. J.

1. PRACTICE: Called terms : Records in criminal cases. In a criminal case for

felony, in which the indictment or other proceedings are had at a called term of the co'ırt, the record should show the request made by the county commissioners to the judge for the term, the order of the judge thereon, and the due publication of notice of the holding of the court.

2.

-: Record in criminal cases for felony should show that a venire for summoning the juries has been issued to the sheriff and been by him executed. or that the court, by its order, directed the summoning of the juries.

8. -- The record should also show that the prisoner was present at

and during the trial, and at the rendition of the verdict.

4. -: Waiving a right. Nor can the prisoner waive his right thus to be

present when on trial for a capital felony,

Per LAKE, J.,

1. PRACTICE IN CRIMINAL CASES: Section 166 of the Criminal Code, as enacted

while Nebraska was a Territory, providing that the indictment shall run in the name of “ The Territory of Nebraska," is modified by the clause of the constitution which provides that it shall run in the name of “The People of the State of Nebraska.

2. — -: Called terms. It is not necessary that the record should show affirma

tively that every step was taken to convene the court at a called term, in order to support the proceedings had thereat, providing enough appears to establish the facts.

8. -: Pleading. A plea to the jurisdiction which only alleges conclusions

of law, and not facts adverse to the jurisdiction, is not good.

4.

:

-:-It is error to put a prisoner upon his trial before he has plead to the indictment.

5.

But if the defendant plead “not guilty," and afterwards file his motion to quash and plea in abatement and they are determined, and the trial proceeds without a renewal of the plea of “not guilty," the presumption is that it, as first interposed, was not withdrawn.

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6. —: Evidence. It is error to refuse to permit, on cross-examination, a

question as to his being intoxicated being put to a witness, who, on his direct examination, has testified to acts and declarations of the accused [S. C. N.]

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BURLEY V. THE STATE.

and the deceased before the homicide, which tend to fasten guilt on the former.

7.

: Filling vacancies in juries. It is error to fill vacancies in the grand jury from the list of persons summoned as petit jurors, and it is not material whether any injustice was thereby suffered by the prisoner.

This was an indictment for murder. Its caption was thus :

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Of the November term of the District Court of the Third Judicial District, held in and for the county of Lincoln pursuant to appointment and notice of his honor L. CROUNSE, judge of said district, in the year of our Lord, 1868."

Attached to the record, but apparently not a part of the transcript certified by the clerk of the District Court, are the following papers: A copy of an affidavit made by Charles L. Jenkins, of the publication, for forty days prior to November 2d, 1868, in the Omaha Republican, a newspaper published at Omaha, of a notice given by “L. CROUNSE, judge Third Judicial District,” that a term of court would be held at North Platte, in and for Lincoln county, commencing on the 25th day of November, 1868; a copy of the proceedings of the county commissioners of said county, ordering that Judge CROUNSE be requested to hold such term of court; an order made by Judge CROUNSE thereon that such term be held.

The record did not show that any venires for the grand or petit jurors had been issued or that the court had made any order that they be summoned, but recited that "thereupon 0. 0. Austin, sheriff of said county, made return of the following grand jurors as having been regularly summoned.” It also showed that the persons thus summoned appeared, when seven were excused, and "a like number

BURLEY V. THE STATE.

from the list of petit jurors transferred to complete the panel of grand jurors.” This indictment was returned on the 26th of November, 1868. On the 30th of the same month the defendant was arraigned and plead “not guilty," without prejudice to his right of interposing any other plea. He, on that day, filed his motion to quash the indictment which, after argument, was overruled. Thereupon he filed his plea to the jurisdiction, which was also overruled. The venue was then changed by the court to Dodge county.

The trial was bad at a special term of the District Court for Dodge county, commencing on the 28th day of December, 1868. No plea of “not guilty” was interposed, except that mentioned above. The trial commenced on that day and the taking of testimony was continued through that and the two following days, and on the 31st the jury returned a verdict of guilty. The record did not show that the prisoner was present at any time during the trial, or at the rendition of the verdict.

On the trial three witnesses severally testified that they were at dinner at the shanty where the killing took place ; that the deceased then said that he was going to try to buy eight mules for $800. He drew from his pocket book a fifty dollar bill to make a bet with the prisoner, who took and returned it to him, and, with a sinister look, asked him if he had more, to which he replied that he had. After dinner the witnesses left the shanty, the deceased and the prisoner remaining alone, and went to work chopping wood about four hundred yards distant, when they heard a pistol shot. They then went to the cabin and found the deceased shot dead. They afterwards found his pocket book lying open on the ground two hundred yards distant.

On cross-examination by the prisoner's counsel, they were asked if they drank intoxicating liquors at dinner. Objection was made to the question which the court sustained, and the prisoner excepted.

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BURLEY V. THE STATE.

The cause was brought here by writ of error.

C. H. Brown, for the plaintiff in error

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I. There was error on the part of the court below in overruling the motion of the accused to quash the indictment.

1. The presentation of the accused in the indictment is in the name of The People. It should have been in the name of the State of Nebraska.–Sec. 10, Constitution of Nebraska, title " Judiciary;" Sec. 1, Id. Schedule;" Sec. 166, Criminal Code.

2. The indictment purports to have been found at a November term of the District Court for Lincoln county. Such a court is not known to the laws of our State.—3 Ses. sion Laws of State, page 50, sec. 5, 6, 7, 8; Wharton's Precedents of Indictments and Pleas, page 1.

3. All the allegations necessary to confer full authority and jurisdiction upon the court should be apparent, and fully set forth in the indictment. - Wharton's Crim. Law, sec. 223; 1 Bish. Crim. Pro. sec. 152.

II. It was error on the part of the court below, overruling and dismissing the plea to the jurisdiction of the court.

1. It was a sworn plea and tendered to the court facts raising an issue, and should have been answered by the State by demurrer or replication. The issue thus raised should have been tried and judgment rendered thereon, if against the accused, with right to plead over.- Wharton's Crim. Pro. 657; Adams v. The People, 1 Com. 173 ; Adams v. The People, 3 Denio, 190 ; 1 Bish. Crim. Pro. sec. 479; 1 Arch. Crim. Pro. 370; 1 Chitty Pleadings, 480; 1 Chitty on Crim. Law, 437.

III. The record shows error in this, that the defendant in the court below was tried without having plead to the

BURLEY V. THE STATE.

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indictment. This made no issue to the jury.—Wharton's Crim. Law, 430; 1 Arch. Crim. Plead. 666, 351, n.; Nebraska Crim. Code, sec. 188.

IV. The court below erred in excluding from the jury competent and legal evidence.—1 Greenleaf Evi. 201, 215, 218; 2 Rus. on Crimes, 867; 1 Phil. on Evi. 406, 407; Roscoe's Crim. Evi. 55.

E. F. Gray, for the People.

1. It is in the discretion of the court to hear the motion to quash, while the plea of not guilty remains on the record.—1 Bish. Crim. Pro. 447 and note a. As to objection to jurisdiction after plea.

II. Evidence of drunkenness only admissible when some provocation is shown, and then only in those States where there is “murder in the second degree.” Such evidence may only be admitted when there is passion excited by inadequate provocation.”—1 Whar. Crim. Law, note p. to sec. 41.

III. “Where an admission of a party to the action is proved against him, he may prove, on his part, the whole of the conversation at the time so far as it qualifies the admission, but no farther. His declaration at the time, upon the general merits of the case, cannot be proved in his favor."-2 Abbott's N. Y. Digest, 694, sec. 1140, 1141; Brouner v. Goldsmith, 1 Am. Law Reg. 47; 1 Phil. Evi. 407; Cowen & Hill's note, 118.

MASON, Ch. J.

The defendant, in the court below, was indicted at a called term of the District Court sitting in and for Lincoln county, commencing on the 25th of November, 1868, for the murder of Charles Colliton. The term of the court was called

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