Belangee v. State, No. 18424.

CourtSupreme Court of Nebraska
Writing for the CourtREESE
Citation97 Neb. 184,149 N.W. 415
Docket NumberNo. 18424.
Decision Date12 November 1914
PartiesBELANGEE v. STATE.

97 Neb. 184
149 N.W. 415

BELANGEE
v.
STATE.

No. 18424.

Supreme Court of Nebraska.

Nov. 12, 1914.



Syllabus by the Court.

“An affidavit alleging material facts on information and belief does not give a court jurisdiction of a contempt proceeding.” Freeman v. City of Huron, 8 S. D. 435, 66 N. W. 928.

“Proceedings for contempt not committed in the presence of the court are instituted by filing an information under oath stating the facts constituting the alleged contempt. The charge should be stated in a positive manner, and it is not sufficient for the affiant to allege that he ‘is informed and believes' certain material facts.” Ludden v. State, 31 Neb. 429, 48 N. W. 61.

“The statements must be as of the personal knowledge of the affiant. They may not be on information and belief.” Herdman v. State, 54 Neb. 626, 74 N. W. 1097.

“The affidavit in such a proceeding is jurisdictional.” Herdman v. State, 54 Neb. 626, 74 N. W. 1097.


Error to District Court, Douglas County; Sears, Judge.

Charles Belangee was convicted of contempt of court, and brings error. Reversed and dismissed.

Rose, Sedgwick, and Letton, JJ., dissenting.

[149 N.W. 415]

Benj. S. Baker, of Omaha, for plaintiff in error.

Grant G. Martin and Frank E. Edgerton, both of Lincoln, for the State.


REESE, C. J.

This is a proceeding in error to the district court for Douglas county in a case where plaintiff in error, who will hereafter be referred to as defendant, was found guilty of contempt of court in an attempt to corrupt a juror in a case on trial in said court. As shown by the transcript, the proceeding was inaugurated by the filing of an information by the county attorney charging the accused with the specific offense. The charge contained in the information constitutes a constructive criminal contempt; that is, that the act, consisting of an attempt to bribe a juror, was not committed in the presence or hearing of the court, nor near by the court when and where it was in session. The information was filed without any previous proceedings. It is in the exact form of an information in a criminal prosecution, with the exception that at its close it is alleged that the acts committed were “contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska, and in contempt of said district court and its dignity, a phrase not essential to the validity of a charge either in an ordinary criminal prosecution or a prosecution of this character. It is claimed that the verification of the information is not sufficient, for the reason it is not positively sworn to; the recital in the affidavit being that “the facts set forth in said information are true, to the best of my knowledge and belief.” After the filing of the information defendant raised the question of jurisdiction by proper motions, objections, and exceptions, all of which were overruled, when he entered his plea of not guilty, with a general denial of the allegations of the information. A trial was had to the district court resulting in finding defendant guilty as charged in the information. A motion for a new trial was filed and overruled, also a motion in arrest of judgment was filed, and which also was overruled, when defendant was sentenced to pay a fine of $500 and to be imprisoned in the county jail for a period of six months and to pay the costs of prosecution. The case is now here for review; one of the contentions being that the court was without jurisdiction to hear the case or render any judgment.

[1][2][3][4] Upon the question as to the verification of the information, it has been held in this state that the affidavit required in cases of contempt is jurisdictional. Gandy v. State, 13 Neb. 445, 14 N. W. 143;Ludden v. State, 31 Neb. 429, 48 N. W. 61;Hawthorne v. State, 45 Neb. 871, 64 N. W. 359;Herdman v. State, 54 Neb. 626, 74 N. W. 1097. In this case the information, filed by the county attorney, must be taken as the

[149 N.W. 416]

affidavit upon which the jurisdiction depends. There were two other affidavits presented to the judge, which he delivered to the county attorney, as shown by the bill of exceptions, but they do not constitute any part of the basis of the prosecution. In fact, in so far as the information is concerned, they are ignored. The affidavit of verification was made by the county attorney. We know of no rule of law requiring the affidavit to be made by him; nor do we find any provision or decision making it his special duty so to do. The affidavit must be treated the same as if made by any private person....

To continue reading

Request your trial
10 practice notes
  • Robertson v. State, 6 Div. 643
    • United States
    • Alabama Court of Appeals
    • December 16, 1924
    ...106, 112 N.W. 60; State ex rel. Jones v. Conn (1900) 37 Or. 596, 62 P. 289; Freeman v. Huron, 8 S.D. 436, 66 N.W. 928; Belangee v. State, 97 Neb. 184, 149 N.W. 415; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; In re Rice (C.C.) 181 F. 217; State v. Gallup, 1 Kan.App. 618, 42 P. 406; Rus......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...one not a public prosecutor; and the same is true of Herdman v. State, 54 Neb. 626, 74 N.W. 1097. The same is true of Belangee v. State, 97 Neb. 184, 149 N.W. 415, but in the last case three judges out of seven dissented, and, as already indicated, it was held by a unanimous court in Emery ......
  • Charles Cushman Co. v. Mackesy
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 30, 1938
    ...Loan & Trust Co., 49 Idaho, 280, 288 P. 157, 73 A.L.R. 1323; Herdman v. State, 54 Neb. 626, 74 N.W. 1097; Belangee v. State of Nebraska, 97 Neb. 184, 149 N.W. 415; Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928; In re Solberg, 51 S.D. 246, 213 N.W. 9; In re Roth, 3 Cal.App.2d 226, 39 P.2......
  • Bee Pub. Co. v. State, Nos. 21314
    • United States
    • Supreme Court of Nebraska
    • November 17, 1921
    ...is without jurisdiction. The argument is not tenable. They cited Herdman v. State, 54 Neb. 626, 74 N. W. 1097, and Belangee v. State, 97 Neb. 184, 149 N. W. 415. But in those cases the court did not, as in the present case, order the county attorney to institute the prosecution. It may be n......
  • Request a trial to view additional results
10 cases
  • Robertson v. State, 6 Div. 643
    • United States
    • Alabama Court of Appeals
    • December 16, 1924
    ...106, 112 N.W. 60; State ex rel. Jones v. Conn (1900) 37 Or. 596, 62 P. 289; Freeman v. Huron, 8 S.D. 436, 66 N.W. 928; Belangee v. State, 97 Neb. 184, 149 N.W. 415; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; In re Rice (C.C.) 181 F. 217; State v. Gallup, 1 Kan.App. 618, 42 P. 406; Rus......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...one not a public prosecutor; and the same is true of Herdman v. State, 54 Neb. 626, 74 N.W. 1097. The same is true of Belangee v. State, 97 Neb. 184, 149 N.W. 415, but in the last case three judges out of seven dissented, and, as already indicated, it was held by a unanimous court in Emery ......
  • Charles Cushman Co. v. Mackesy
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 30, 1938
    ...Loan & Trust Co., 49 Idaho, 280, 288 P. 157, 73 A.L.R. 1323; Herdman v. State, 54 Neb. 626, 74 N.W. 1097; Belangee v. State of Nebraska, 97 Neb. 184, 149 N.W. 415; Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928; In re Solberg, 51 S.D. 246, 213 N.W. 9; In re Roth, 3 Cal.App.2d 226, 39 P.2......
  • Bee Pub. Co. v. State, Nos. 21314
    • United States
    • Supreme Court of Nebraska
    • November 17, 1921
    ...is without jurisdiction. The argument is not tenable. They cited Herdman v. State, 54 Neb. 626, 74 N. W. 1097, and Belangee v. State, 97 Neb. 184, 149 N. W. 415. But in those cases the court did not, as in the present case, order the county attorney to institute the prosecution. It may be n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT