Kountz v. State

• Decision Date: 31 January 1879
• Citation: 1 N.W. 142,8 Neb. 294
• Parties: JOHN KOUNTZ, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 294

1 N.W. 142

JOHN KOUNTZ, PLAINTIFF IN ERROR,

v.THE STATE OF NEBRASKA, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

January Term, 1879.

Motion to dismiss proceedings in error.

Attorney General for the motion.

Isham Reavis, contra.

MAXWELL, C. J.

--At the March term, 1877, of the district court for Richardson County, the plaintiff in error was convicted of murder in the second degree, and on the seventh day of April of that year was sentenced to imprisonment in the penitentiary for the period of twenty-five years. On the nineteenth day of April, 1878, he obtained a writ of error and filed a transcript of the proceedings in the case in this court and assigns various errors therein. The attorney general now moves to dismiss the proceedings in error because they were not commenced within the period prescribed by law.

At common law, bills of exceptions were not allowed in cases of felony and treason, because until the present century a judgment of conviction in such cases in England could not be reviewed. Therefore there are no precedents at common law to which our attention has been called wherein the question of time was a material inquiry.

Section 508 of the Criminal Code provides, that “in all criminal cases not punishable with death, after final judgment, writs of error may, on good cause shown, be allowed, on the application of the defendant, by the supreme court or any judge thereof in vacation, as in civil cases; and in criminal cases punishable with death, writs of error may be allowed on application by said court when in open session, or by any judge thereof in vacation.” Gen. Stat. 834.

In 1875, an act was passed amending section 592 of the Civil Code, so as to require proceedings in error to be instituted in six months after the rendition of the judgment or final order. Laws 1875, p. 40. In 1877, the time was extended one year. Laws 1877, p. 14. Do these provisions of the code apply to criminal cases? We think they do. We are aware that the supreme court of Ohio, in Blackburn v. The State, 22 Ohio St. 583, held that they did not apply. No reason is given, and the case does not appear to have been very fully considered. In this state, a writ of error is a writ of right in both civil and criminal cases, and the practice in both classes of cases is assimilated as far as posslble. It is evident that the language of the section referred to includes also the time within which proceedings in error might be instituted. And every presumption of innocence in favor of the accused supports this construction. In addition to the protection which the common law throws around the accused, he is entitled to counsel to make his defense, and if unable to employ the same, the court will appoint. He is entitled to a bill of exceptions, and after calling the attention of the court below to...