Arnold v. State
| Decision Date | 04 January 1894 |
| Parties | ARNOLD v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. The prosecuting attorney may interpose a demurrer to a plea in bar offered under section 449 of the Criminal Code by a prisoner indicted for a felony, and have the judgment of the court whether the facts stated in such plea are sufficient, if true, to prevent the trial of the prisoner for the crime for which he stands indicted and arraigned. But, where the plea in bar is good, then the issues raised by it, and the state's reply thereto, must, and can only, be tried by a jury.
2. In such a case, it is beyond the power of the state's attorney and the prisoner, by agreement, to substitute another tribunal than the one prescribed by statute for the trial of such issues. The law is designed for the protection of the state, as well as the prisoner, and its mandates cannot be evaded by contract, nor can a prisoner charged with felony waive the right to a jury trial of such issues.
3. The language, “in the absence of a valid agreement to proceed otherwise,” found in the second syllabus in State v. Priebnow, 19 N. W. 628, 16 Neb. 131, disapproved.
Error to district court, Scott's Bluff county; Church, Judge.
George S. Arnold, having been convicted of murder, brings error. Reversed.Geo. W. Heist and Henry St. Rayner, for plaintiff in error.
Geo. H. Hastings, Atty. Gen., 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, Neb., 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 and that there has been no pardon, and on the trial of...
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