SOME HOPE YET FOR BOLLN
Nebraska is Cited to Show Cause Why Writ
of Error Shall Not Be Allowed.
CITATION FROM THE U.S. SUPREME COURT
Theory is that Prosecution by In-
formation is Not Good in Law
and Constitutional Ques-
tions Involved.Information has just been received in Omaha that Henry Billings Brown, associate Justice of the United States supreme court, has cited the state of Nebraska to appear before the supreme court to show why a writ of error should not be allowed in the Henry Bolln embezzlement case. The citation is dated July 28 and is returnable in thirty days. This is in effect a demand for the presentation of the record, and Bolln's attorneys assert that they expect to be able to secure the writ on the showing that will be made. The effect of this would be to reverse the proceedings in the Nebraska courts and to discharge Bolln from custody.
The contentions on which the application for the writ is based are exhaustively set forth in the brief which was submitted by Bolln's attorney, Joel W. West. They are of general interest to the public as well as attorneys in that they raise constitutional questions that if decided according to the view of the plaintiff in error would reverse large proportion of the sentences that have been passed In criminal cases in Nebraska. The main theory, and the one that is most exhaustively argued In the brief, is to the effect that all the proceedings against Bolln are void because no indictment against him was ever returned by a grand jury , and the prosecuting attorney had no legal authority to file the information.
At the time of the admission of Nebraska into the union congress passed what is known as the Enabling Act. Section 4, among other things , provides as follows:
That members of the convention thus elected shall meet at the capital of said territory on the first Monday of July next, and after organization shall declare on behalf of the people of said territory that they adopt the Constitution of the United States, where upon the said convention shall be and it is hereby authorized to form a constitution and state government; Provided, that the constitution , when formed , shall be republican, and not repugnant to the Constitution of the United States, and the principles of the Declaration of Independence.
Under the provisions of this act, it is contended on behalf of Henry Bolln, that the state of Nebraska thereby adopted not only of the constitution of the United States, but also the interpretation placed theron by the supreme court or the United States.
Under the decisions of the supreme court of the United States it has been held that for an infamous crime, such as embezzlement, the party must be indicted by a grand jury and that an information by the prosecuting officer is illegal and void. Mr. West's contention, and the one upon which the supreme court of the United States issues the writ of error, is that the constitution of the state of Nebraska adopted in 1875, providing among other things that persons charged with crime could be informed against by the public prosecutor, is null and void and in conflict with the express provisions of the enabling act above quoted under which Nebraska became a state.
Prior to the admission of Nebraska into the union no such requirement had over been exacted from any other state seeking admission. Carrying out the principles embodied in the question above made and applying them to the power of the people of Nebraska to amend or revise their constitution in view of the construction which is placed upon section 4 of the enabling act, then to the powers prohibited to states by the constitution, there would, with respect to Nebraska, be added other prohibitions. That is to say, the state of Nebraska can neither by constitutional nor statutory provision establish any religion or prohibit free exercise thereof; nor abridge the freedom of speech nor of the press nor the right of the people to peaceably assemble and petition the government for a redress of grievances. Nor can it infringe upon the right of the people to keep and bear arms. Nor can it in time of peace quarter any soldier in any house without the consent of the owner. Nor can it interfere with the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Nor can it provide for holding any person to answer for a capital or other wise infamous crime, unless on a presentment or indictment of a grand jury, except within the proviso of the federal constitution. Nor in any criminal prosecution can it deprive the accused of his right to a speedy public trial by an impartial jury. To attempt to do any of these things, contrary to the provisions of the federal constitution within the state of Nebraska, is to proceed without due process of law.
It is also contended that Bolln never had a preliminary examination and that the state courts erred in deciding that the showing on this point did not justify a plea of error.Constitutional Questions.
Briefly stated, the argument urged in the brief is that Nebraska became a member of the union after the various amendments to the federal constitution were passed and that by the terms of the enabling act the laws of the state were subject to the interpretations placed on the federal constitution by the supreme court of the United States. The supreme court has taken the ground in several cases that on indictment before a grand jury is an indispensable prerequisite to prosecution for grave offenses, and it is consequently urged that the legislative enactment that gives public prosecutors the right to inform against men charged with these offenses is unconstitutional and void.
Mr. West quotes the section of the enabling act that provides for the organization of the state government of Nebraska and then cites section 6 of the state constitution, which provides that "the people of Nebraska hereby accepting the conditions in said act specified." Section 8 of the constitution is also quoted as follows: "No person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand Jury except in cases of impeachment or in cases cognizable by justices of the peace, or arising in the army or the navy or the militia when in actual service in time of war or public danger," etc.
Continuing, the brief cites section 10 of article I of the new constitution of 1875, in which the same doctrine is repeated, with a proviso that the legislature may by law provide for holding persons to answer for criminal offenses in information of a public prosecutor and may by law abolish, limit, change, amend or otherwise regulate the grand Jury system. Under this provision the legislature, in 1885, passed Chapter LIV of the code of criminal procedure, which provides at length for the prosecution of offenses by information and dispenses with the calling of grand Juries, except by order of the district judges.
The argumentative part of the brief is largely devoted to an effort to show that this chapter is void under the interpretation placed by the supreme court of the United States on the federal constitution. It is recited that the point was raised by Bolln's attorneys in April, 1896, in a motion to quash the information on the ground that the county attorney had no right to file an information charging the defendant with felony. This continuation was not sustained by the court and Bolln was arraigned a few days after. It is alleged that he stood mute and refused to plead and that the court entered plea of "not guilty."
The proceedings in the supreme court, where the same point was raised, are also cited, as well as the fact that Bolln was sentenced to the penitentiary for nineteen years on several counts and also to pay a fine of over $200,000."Without Due Process of Law."
The brief then proceeds to argue that the proceedings were erroneous in that Bolln was deprived of his liberty "without due process of law," the contention being that "due process of law," in the view of the United States courts, means that an indictment must be returned by a grand jury. It is asserted that the people of Nebraska have no right to adopt any constitutional provision that will take away or abridge any privilege that is secured to them by the federal constitution and that the chapter that abolishes the grand jury is void on this account. This view is supported by an able argument and by copious citations from the leading authorities on constitutional law. It is also contended that the lower court erred in refusing to permit the defendant to have a jury at his preliminary hearing.[The Omaha Daily Bee, Omaha, Tuesday Morning, August 1, 1899. Pg. 7]