Arnold v. State
| Decision Date | 04 January 1894 |
| Docket Number | 4433 |
| Citation | 57 N.W. 378,38 Neb. 752 |
| Parties | GEORGE S. ARNOLD v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Scott's Bluff county. Tried below before CHURCH, J.
REVERSED AND REMANDED.
George W. Heist and Henry St. Rayner, for plaintiff in error:
When a plea in bar is interposed to a prosecution upon indictment and it states facts which, if true, would constitute a bar to further prosecution, the truth of the plea must be ascertained by a jury. (State v. Priebnow, 16 Neb 131.)
George H. Hastings, Attorney General, for the state.
George S. Arnold was tried in the district court of Scott's Bluff county for the crime of murder, found guilty, and sentenced to imprisonment in the penitentiary. From this judgment he prosecutes error to this court.
Arnold, at the time of his arraignment, August 26, 1889, offered to the indictment against him a plea in bar as follows: "Now comes George S. Arnold, defendant, in his own proper person, into court here, and having heard the indictment read in the above entitled cause, says that the state of Nebraska ought not further to prosecute said indictment against him, because at the December, 1888, term of the district court of Cheyenne county, Nebraska, held at Sidney, in said county, he, the said George S. Arnold, was indicted by the grand jury of said county on said charge; that he was duly arraigned in said court on said indictment and pleaded 'not guilty' thereto; that after having pleaded 'not guilty,' and being placed upon his trial, was lawfully acquitted by being discharged of the offense charged in said indictment." To this plea the prosecuting attorney filed the following reply: "Now comes W. J. Richardson, prosecuting attorney of Scott's Bluff county, state of Nebraska, and replying to the plea in bar of said defendant, says that he denies each and every fact stated therein." The record before us sets out: "On the 29th day of August, 1889, the said plea in bar was tried to said court; and after hearing the evidence and arguments of counsel, the court did overrule the same, to which defendant excepted." It appears that the court, and not a jury, tried the issues of fact made by the plea in bar and reply thereto, and this is assigned as error.
Section 449 of the Criminal Code provides: "The accused may then offer a plea in bar to the indictment that he has before had judgment of acquittal, or been convicted, or been pardoned for the same offense; and to this plea the prosecuting attorney may reply that there is no record of such acquittal or conviction, or that there has been no pardon; and on the trial of such issue to a jury," etc. The record does not disclose that Arnold demanded a jury to try the truth of the facts alleged in his plea in bar, nor does it disclose that he waived his right to a jury to try the issues joined by such facts. But he did not need to demand a jury for that purpose, as the law required the matter in issue to be tried not by a judge, but by a jury; and, if the prisoner had waived the jury, and the record so showed, he would not be estopped from alleging the failure to try this matter to a jury as error. The statute was designed for the...
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Davis v. State
...and if the state joined issue by replication the prisoner would have been entitled to a jury to try the issue so made. (Arnold v. State, 38 Neb. 752, 57 N.W. 378; Smith v. State, 42 Neb. 356, 60 N.W. 585.) But only was the plea invalid because not signed and sworn to by the prisoner, but th......
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Davis v. State
...and, if the state joined issue by replication, the prisoner would have been entitled to a jury to try the issue so made. Arnold v. State, 38 Neb. 752, 57 N. W. 378;Smith v. State, 42 Neb. 356, 60 N. W. 585. But not only was the plea invalid because not signed and sworn to by the prisoner, b......
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Peterson v. State
...is absolutely void, and constitutes no bar to further proceedings on the same charge. Thompson v. State, 6 Neb. 102;Arnold v. State, 38 Neb. 752, 57 N. W. 378. The defendants, after having procured their discharge on the ground that the court before which they were tried had no jurisdiction......
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Bolln v. State
...case at bar, could be properly determined by the court without the interventionof a jury. This view is not in conflict with Arnold v. State, 38 Neb. 752, 57 N. W. 378, and Smith v. State, 42 Neb. 356, 60 N. W. 585, in which cases it was ruled that the trial of an issue of fact tendered by a......