Madsen v. State

62 N.W. 1081, 44 Neb. 631, 1895 Neb. LEXIS 88

• Court: Nebraska Supreme Court
• Decided: April 5, 1895
• Docket: No. 5701
• Status: Published

Opinion

Norval, C. J.

An indictment was returned to the district court of Douglas county, charging the plaintiff in error, as a member of the city council of the city of Omaha, with having solicited a bribe. A verdict of guilty was returned, wheretupon a motion for a new trial was filed, alleging:

1. The verdict was not sustained by the evidence.

2. The verdict is contrary to law.

3. Newly discovered evidence, material to the defendant,, which he could not with reasonable diligence have discovered and produced at the trial.

4. Surprise, which ordinary prudence could not have guarded against.

The motion for a new trial was overruled by the court,, and the plaintiff in error was sentenced to pay a fine of $300 and the costs of prosecution.

The petition in error alleges the following errors:

1. In refusing to instruct the jury to return a verdict of not guilty.

2. In giving the first, second, and third instructions^ and each of them.

3. The overruling of the motion for a new trial.

4. In permitting testimony to be given before the jury-over the objection of the plaintiff in error.

In the brief filed by counsel of plaintiff in error, none of the errors assigned in the petition in error are relied uport for a reversal of the judgment. Again, it will be observed that not one of the grounds contained in the motion for a» new trial is embodied in the petition in error. Owing to the-peculiar condition of the record indicated above, no proposition is presented to this court for review. It has morethaft once been held that assignments in a petition in error not argued in the brief will be considered waived. (Scott v. Chope, 33 Neb., 41; Brown v. Dunn, 38 Neb., 52; Phenix Ins. Co. v. Reams, 37 Neb., 423; Gill v. Lydick, 40 Neb., 508; Glaze v. Parcel, 40 Neb., 732.) It is a well established rule that in order to obtain a review of alleged errors occurring during a trial, the attention of the trial court must be challenged to the same in a motion for a new trial, and such alleged errors must be specifically assigned in the petition in error. (Tecumseh Town Site Case, 3 Neb., 267; McCormick v. Drummed, 9 Neb., 384; Tomer v. Densmore, 8 Neb., 384; Shaffer v. Maddox, 9 Neb., 205; Birdsall v. Carter, 11 Neb., 143; Lowe v. City of Omaha, 33 Neb., ; Dillon v. State, 39 Neb., 92; Haverly v. Elliott, 39 Neb., 206.) The judgment is

Affirmed.