Barker v. State
| Citation | 74 N.W. 427,54 Neb. 53 |
| Decision Date | 03 March 1898 |
| Docket Number | 9720 |
| Parties | WILLIAM E. BARKER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dawes county. Tried below before WESTOVER, J. Reversed.
REVERSED AND REMANDED.
J. H Broady and Tibbets Bros., Morey & Ferris, for plaintiff in error.
C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.
This was a prosecution for the crime of perjury. The amended information contains five counts, each charging the defendant with having on May 21, 1896, willfully, feloniously, and corruptly given certain false testimony in a cause pending in the district court of Dawes county, wherein the accused was plaintiff and the Chicago, Burlington & Quincy Railroad Company was defendant. Upon the trial the accused was found guilty under each count, and was sentenced to the penitentiary for two years on the first count and one year on each succeeding count. The sentences were directed to be carried into execution in their respective order, the one to begin immediately upon the expiration of the next preceding one.
It is urged that no information was filed within the time prescribed by law; hence the district court was without jurisdiction to try and sentence. It is disclosed by the record that the defendant waived a preliminary examination before a justice of the peace on May 27, 1896, and was required to enter into a recognizance in the sum of $ 800 for his appearance forthwith before the district court of Dawes county, the regular April term thereof being in session. In default of bail a mittimus was issued, and the accused was committed thereunder to the county jail. The information upon which the trial was had was filed on December 2, 1896, a day in the October term of the district court. The argument is that under section 389 of the Criminal Code an information should have been filed at the term of court to which defendant was held to answer, and it was not so filed; hence the defendant was entitled to be discharged, he then being held in the county jail. The clerk of the district court certified up the amended information alone. It does, however appear from the supplemental transcript before us that an information was filed against the defendant in this cause in the court below during the said April term. A copy of such information, it is true, is not contained in the transcript, but the clerk has certified that the original contains the following indorsements:
Section 436 of the Criminal Code authorizes a sheriff to serve a copy of an information on the accused, and sections 451 and 452 of said Code require the plea of a defendant of either "guilty" or "not guilty" to an indictment to be entered thereon. But the failure to indorse the plea is not fatal. (Preuit v. People, 5 Neb. 377.) Those sections are applicable to informations, and the certified copy of the indorsements of the clerk and sheriff respectively above set forth is sufficient evidence that an information was filed against the defendant as early as May 29, 1896, or two days after the defendant had waived a preliminary examination before the justice. Moreover, the clerk of the trial court certifies that it is an amended information which is included in the transcript and which was filed December 2. The record not only fails to establish that an information was not lodged against the accused in the district court during the term at which he was required to appear, but it repels any such inference. It is clear that the entry by the clerk of the defendant's plea of not guilty upon the back of the first information could not have been made on May 27, 1896, unless an information had been previously filed. The absence of jurisdiction of the district court will not be presumed, but must affirmatively appear from the face of the record itself.
It is asserted that the court erred in placing the defendant on trial without arraignment, or plea to the amended information. The record shows that the jury was selected to try the cause the same day the amended information was filed and the journal entry of the proceedings in the court below fails to show that the accused was ever called upon to plead, or that he did plead, to said information; that he stood mute, or refused to plead, and a plea of not guilty was entered for him. Under section 436 of the Criminal Code the defendant was entitled as a matter of right to a copy of the amended information, and one day in which to prepare for trial. (Zink v. State, 34 Neb. 37, 51 N.W. 294.) But these were rights accorded him by the statute which he could waive, and the presumption is that he has done so, since it does not appear that any objection was made in the district court to proceeding to trial, because of a want of compliance with the above statutory command. The Criminal Code requires, in prosecutions for felonies, that the accused be arraigned, and that his plea to the indictment or information be taken and entered. (Secs. 448-453.) Section 451 provides that when any person upon the arraignment "offer no plea in bar, he shall plead 'guilty' or 'not guilty;' but if he plead evasively, or stand mute, he shall be taken to have pleaded 'not guilty.'" It is obvious that in every case where a trial upon an indictment or information is required, a plea of not guilty must be entered by the court, since this is essential to the formation of the issue upon which the accused is tried. Without such plea being entered of record there was nothing for the jury to pass upon. A conviction of a felony cannot be sustained where the record fails to show that the accused was arraigned, and that he pleaded to the accusation before trial, ...
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