Bolln v. Nebraska

This is a writ of error to review a judgment of the supreme court of Nebraska, affirming a conviction of the plaintiff in error by the district court of Douglas county, for the crime of embezzlement.

The proceedings in the case, so far as they are disclosed by the record before us, which was agreed upon under subdivision 9 of rule 10 of this court, are as follows:

On April 2, 1896, an information was filed by the county attorney for the county of Douglas against the plaintiff in error, both as city treasurer of the city of Omaha and as treasurer of the board of education, for embezzling moneys belonging to the city, as well as moneys belonging to the school district.

On April 4 a motion to quash was filed upon four grounds: (1) That there was no authority of law to file an information for a felony; (2 and 3) because the prosecution was in contravention of the Constitution of the state; and (4) because it was in contravention of Article Fourteen of the Constitution of the United States, and was without due process of law.

On the same day a paper was filed, entitled a plea in abatement, which prayed judgment that the information might be quashed for the same reasons, and in precisely the words of the motion to quash.

On the same day, a demurrer was filed to the 'eighteen paragraphs' of the plea in abatement, upon the ground that these paragraphs did not state facts sufficient to constitute a defense or to raise an issue upon the plea.

Upon the same day, an order was entered overruling the motion to quash, to which the defendant excepted.

On April 6 another order was entered, sustaining the demurrer as to the eighteen 'reasons therein set forth,' except the ninth; and 'the court doth overrule the said demurrer as to the ninth reason therein set forth, with leave to the state to reply instanter.' The state duly excepted to the ruling as to the ninth reason.

On the same day a 'reply to the ninth paragraph of the defendant's plea in abatement' was filed by the state, admitting that the defendant had had 'no preliminary examination for said crime referred to in said ninth paragraph,' but alleging that he waived such preliminary examination and his right thereto, as shown by the records of the court.

On April 8, 1896, a demurrer was filed to the information, and upon the same day both parties appeared in court, and announced their readiness to proceed to trial upon the ninth paragraph in defendant's plea in abatement. Thereupon the defendant demanded a trial by jury, and the court, on consideration, overruled the demand, to which ruling the defendant duly excepted. After introduction of evidence, pro and con, and upon due consideration, the court found that the defendant had waived a preliminary examination, and therefore found against him, and overruled the ninth paragraph of the plea in abatement. By the same order the demurrer was also overruled. The defendant being arraigned, refused to plead, whereupon the court entered a plea of not guilty, and the trial proceeded, and resulted in a verdict finding the defendant guilty upon the fourth count of embezzling $2,500, upon the ninth count of embezzling $3,000, and upon the eleventh count of embezzling $100,000.

Motion for a new trial being overruled, defendant was sentenced to fine and imprisonment upon the fourth, ninth, and eleventh counts.

The case was carried to the supreme court of Nebraska and the judgment affirmed. The court delivered an opinion, in which it stated that 'a plea in abatement was filed, to which the county attorney interposed a demurrer, which was overruled as to the ninth ground of the plea and sustained as to the other seventeen grounds therein set forth.' The petition in error, it was stated, contained 279 assignments, the only ones of which could be said to involve a Federal question being, first, that the state had no authority to prosecute by information, and second, the refusal of the court to call a jury to pass upon the issue tendered by the ninth paragraph of the plea in abatement, that the defendant waived a preliminary examination before teh magistrate. This opinion was filed May 18, 1897. 51 Neb. 581, 71 N. W. 444.

On September 20, 1897, plaintiff in error filed in the supreme court of the state assignments of error which appear to have been intended for this court, and on September 18, 1899, served upon the attorney general a petition to this court for the allowance of a writ of error upon the ground, first, that the plaintiff was convicted upon an information, and, second, because he had been denied a jury trial upon the issue tendered by special plea, that he had had no preliminary examination and had not waived the same.

Mr. Joel W. West for plaintiff in error.

Mr. C. J. Smyth for defendant in error.

Mr. Justice Brown delivered the opinion of the court: