Benson v. State, No. 33508

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; YEAGER
Citation62 N.W.2d 522,42 A.L.R.2d 991,158 Neb. 168
Decision Date12 February 1954
Docket NumberNo. 33508
Parties, 42 A.L.R.2d 991 BENSON v. STATE.

Page 522

62 N.W.2d 522
158 Neb. 168, 42 A.L.R.2d 991
BENSON

v.
STATE.
No. 33508.
Supreme Court of Nebraska.
Feb. 12, 1954.
Syllabus by the Court.

1. The defendant in an action before a justice of the peace wherein a fine or imprisonment,[158 Neb. 169] or both, have been imposed has the right of appeal to the district court.

2. This right of appeal exists in his favor even though he has pleaded guilty to the charge or charges against him.

3. The right of appeal may be exercised at any time within 10 days from the date of the judgment.

4. The right of appeal is dependent upon the defendant entering into a written recognizance agreeable to the provisions of section 29-611, R.R.S.1943, or by the deposit of a cash bond in a sum to be fixed by the justice of the peace in lieu of a written recognizance.

Dryden, Jensen & Dier, Kearney, for plaintiff in error.

C. S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

On April 6, 1953, a complaint in the name of the State of Nebraska was filed in the justice of the peace court of John C. Mitchell, a justic of the peace in Buffalo County, Nebraska, charging that Harold L. Benson operated a motor vehicle on the public highways of the State of Nebraska, (1) while under the influence of intoxicating liquor, (2) in such a manner as to indicate a willful disregard for the safety of persons and property, and (3) at a rate of speed in excess of 50 miles an hour between sunset and sunrise.

Page 523

Benson was arraigned and he pleaded not guilty to the first charge and guilty as to the other two. The first charge was dismissed. On the second he was fined $100 and sentenced to a term of 30 days in jail in addition to which his operator's license was suspended for 1 year from the date of release from jail. On the third charge [158 Neb. 170] he was fined $50. The costs were also taxed to him.

On April 9, 1953, Benson made a motion for leave to withdraw his plea of guilty and for a trial on the charges made against him. The motion was on the same day overruled. Also on the same day notice of appeal was given and a cash appeal bond was given in the justice court in the amount of $300.

The record does not clearly disclose whether the intention was to appeal from the conviction and sentence imposed or the refusal to allow him to withdraw his plea of guilty, or both, but the parties have in their presentation treated it as an intention to appeal from both. We will regard it in the same manner.

The justice of the peace prepared a transcript of the proceedings and delivered it to the clerk of the district court on April 11, 1953.

The county attorney filed a motion to quash the appeal on the following grounds:

1. That an appeal is not available since Benson pleaded guilty to the charges of which he was convicted.

2. That the justice of the peace did not within 10 days forthwith make a return of the proceedings and failed to certify the complaint and warrant together with the recognizance taken.

3. That no recognizance was filed within 10 days conditional on the appearance of Benson.

4. That no recognizance was executed or acknowledged in the presence of the justice of the peace conditioned for appearance of Benson in the district court.

The motion was sustained and the appeal quashed. Thereafter a motion for new trial was filed which was overruled. Benson has brought the order quashing the appeal and the order overruling the motion for new trial to this court for review by petition in error. He contends that the appeal was erroneously quashed.

Hereinafter for convenience Benson will be referred to as defendant and the...

To continue reading

Request your trial
5 practice notes
  • State ex rel. League of Neb. Municipalities v. Loup River Public Power Dist., No. 33423
    • United States
    • Supreme Court of Nebraska
    • February 12, 1954
    ...to the ultimate user and consumer; further that relator does not possess or operate any electrical transmission or distribution equipment[158 Neb. 168] or facilities; and that it does not sell and does not propose to sell at retail to the ultimate user or consumer. In the absence of a bill ......
  • Anderson v. State, No. 34118
    • United States
    • Supreme Court of Nebraska
    • February 22, 1957
    ...bond was executed in the form provided by section 29-611, R.R.S.1943, and met all the conditions therein specified. See, Benson v. State, 158 Neb. 168, 62 N.W.2d 522, 42 A.L.R.2d 991; McDonald v. State, 161 Neb. 118, 72 N.W.2d 521. This was essential. See, Killian v. State, 114 Neb. 4, 205 ......
  • Abbott v. State, No. 33711
    • United States
    • Supreme Court of Nebraska
    • April 22, 1955
    ...by the complaint of the State. That is the [160 Neb. 278] question which was decided by the district court. He relies on Benson v. State, 158 Neb. 168, 62 N.W.2d 522. We there held that a defendant who had pleaded guilty and had been sentenced on the plea was not barred from a right of appe......
  • Stanosheck v. State, No. 34530
    • United States
    • Supreme Court of Nebraska
    • February 27, 1959
    ...has been imposed must accept all of the sentence or [168 Neb. 47] appeal in a manner provided by law in such cases. See, Benson v. State, 158 Neb. 168, 62 N.W.2d 522, 42 A.L.R.2d 991; Abbott v. State, 160 Neb. 275, 69 N.W.2d Be that as it may, defendant admitted that following the hearing a......
  • Request a trial to view additional results
5 cases
  • State ex rel. League of Neb. Municipalities v. Loup River Public Power Dist., No. 33423
    • United States
    • Supreme Court of Nebraska
    • February 12, 1954
    ...to the ultimate user and consumer; further that relator does not possess or operate any electrical transmission or distribution equipment[158 Neb. 168] or facilities; and that it does not sell and does not propose to sell at retail to the ultimate user or consumer. In the absence of a bill ......
  • Anderson v. State, No. 34118
    • United States
    • Supreme Court of Nebraska
    • February 22, 1957
    ...bond was executed in the form provided by section 29-611, R.R.S.1943, and met all the conditions therein specified. See, Benson v. State, 158 Neb. 168, 62 N.W.2d 522, 42 A.L.R.2d 991; McDonald v. State, 161 Neb. 118, 72 N.W.2d 521. This was essential. See, Killian v. State, 114 Neb. 4, 205 ......
  • Abbott v. State, No. 33711
    • United States
    • Supreme Court of Nebraska
    • April 22, 1955
    ...by the complaint of the State. That is the [160 Neb. 278] question which was decided by the district court. He relies on Benson v. State, 158 Neb. 168, 62 N.W.2d 522. We there held that a defendant who had pleaded guilty and had been sentenced on the plea was not barred from a right of appe......
  • Stanosheck v. State, No. 34530
    • United States
    • Supreme Court of Nebraska
    • February 27, 1959
    ...has been imposed must accept all of the sentence or [168 Neb. 47] appeal in a manner provided by law in such cases. See, Benson v. State, 158 Neb. 168, 62 N.W.2d 522, 42 A.L.R.2d 991; Abbott v. State, 160 Neb. 275, 69 N.W.2d Be that as it may, defendant admitted that following the hearing a......
  • 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