Alderman v. State

• Decision Date: 25 April 1888
• Citation: 24 Neb. 97,38 N.W. 36
• Parties: ALDERMAN v. STATE.
• Court: Nebraska Supreme Court

24 Neb. 97

38 N.W. 36

ALDERMAN

v.STATE.

Supreme Court of Nebraska.

April 25, 1888.

Syllabus by the Court.

In a prosecution upon an information charging a felony, the district court, after information filed, will not, upon a motion to quash, inquire into the form and validity of the complaint upon which the preliminary examination before a magistrate was had, the crime alleged being the same.

Where an indictment is returned by the grand jury, which, upon motion to quash, is found to be defective, it is not error for the district court to permit the county attorney to withdraw the indictment, and file an information charging the same offense as that contained in the indictment.

Where an information was filed in the district court, the caption of which was, “The State of Nebraska,” and the prosecution thereunder was conducted in the name of “The State of Nebraska,” this was held to be a sufficient compliance with the provisions of section 24 of article 6 of the constitution, which requires that all process shall run in the name of the state of Nebraska, and the prosecution shall be conducted in the name of the state of Nebraska.

Section 48, Crim. Code, describes and defines the crime of burglary. Where a preliminary examination was had upon a complaint charging the crime of burglary with the intent to steal, and the information filed by the county attorney in the district court charges the same offense, but with the intent to commit a rape, it was held that the same crime, to-wit, burglary, was described both in the complaint and in the information.

Error to district court, Brown county; KINKAID, Judge.

Information against Cam Alderman for burglary with intent to commit rape.C. H. Bane and C. E. Magoon, for plaintiff in error.

REESE, C. J.

Plaintiff in error was arrested upon a warrant issued by a justice of the peace, upon a complaint charging him with a violation of section 49, Crim. Code. The complaint was as follows: “The complaint of Elizabeth Alexander, of said county, made before me, A. J. WARRICK, a justice of the peace in and for said county and state of Nebraska. Cam Alderman, then and there being, did in the night-time break into a building, to-wit, a dwelling-house, with force and arms, in said county and state, and from said house did take, steal, and carry away two bed-quilts, of the value of three dollars; one bed-quilt, value of two dollars and fifty cents; two dressskirts, value of two dollars; one apron, value twenty-five cents,--all of the value of seven dollars and seventy-five cents, being the property of this affiant, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.” Upon a preliminary examination, proper cause being found, he was required to appear before the district court, and answer to said charge. At the next session of the district court a grand jury returned an indictment against him charging that on the 6th day of April, 1887, in the county of Brown and state of Nebraska, about the hour of 12 o'clock in the night season of said day, in the said county, into a certain dwelling-house of Elizabeth Alexander and Mabel Alexander, situated therein, unlawfully, feloniously, burglariously, willfully, maliciously, and forcibly, did break and enter, with the intent then and there to commit a rape upon Elizabeth Alexander and Mabel Alexander, contrary to the form of the statute, etc. A motion to quash the indictment was interposed by defendant's counsel. By leave of court the county attorney withdrew the indictment, and filed his information, alleging substantially the same offense as that charged in the indictment, but corrected the defects pointed out by the motion to quash. A motion was then made to quash the information, assigning as grounds therefor-- First, that the grand jury was called at the then term of court, and an indictment found by them, charging the same offense, but which indictment was quashed by the court after the discharge of the grand jury; second, that the information was filed, on motion of the county attorney, after the grand jury had been discharged; third, that the filing of the information, and the trial of the defendant at that term of court, was irregular; fourth, that the information was not for the same offense for which defendant had been held to answer by the examining magistrate. This motion was overruled by the district court, to which ruling defendant excepted. Upon arraignment a plea of not guilty was entered, when the cause was tried to a jury, who returned a verdict of guilty. There are three questions presented by the brief of plaintiff in error: First, that the complaint on which the examination was had before the magistrate was fatally defective, in that it failed to allege any time of the commission of the offense; second, that the county attorney had no authority, in law, to withdraw the indictment, and substitute therefor an information; third, that the information charges a...