Benson v. State

Decision Date12 February 1954
Docket NumberNo. 33508,33508
Citation62 N.W.2d 522,42 A.L.R.2d 991,158 Neb. 168
Parties, 42 A.L.R.2d 991 BENSON v. STATE.
CourtNebraska Supreme Court

Syllabus by the Court.

1. The defendant in an action before a justice of the peace wherein a fine or imprisonment, 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.

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 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 State of Nebraska as the State.

The first question which will be considered is that of whether or not a plea of guilty in a justice of the peace court and a sentence on the plea is a bar to an appeal to the district court.

The general rule with regard to this subject is stated as follows in 22 C.J.S., Criminal Law, § 390, p. 573: 'Whether an appeal will lie from a judgment of conviction in a justice's court, where accused pleads guilty, depends upon the wording of the particular statute. Under the statutes in some jurisdictions a plea of guilty will not preclude an appeal, while in other it will preclude an appeal, * * *.' See, also, Wright v. City of Bessemer, 209 Ala. 374, 96 So. 316; Burris v. Davis, 46 Ariz. 127, 46 P.2d 1084; State ex rel. Baggs v. Frederick, 124 Fla. 290, 168 So. 252; State v. Dawn, 41 Idaho 199, 239 P. 279; Yager v. State, 190 Ind. 550, 131 N.E. 42; Thomas v. Montcalm Circuit Judge, 228 Mich. 44, 199 N.W. 610; State v. Funderburk, 130 S.C. 352, 126 S.E. 140; Weaver v. Kimball, 59 Utah 72, 202 P. 9; Dickerson v. Commonwealth, 162 Va. 787, 173 S.E. 543.

The statute which the defendant contends gives him the right of appeal is section 29-611, R.R.S.1943, in pertinent part as follows: 'The defendant shall have the right of appeal from any judgment of a magistrate, including justices of the peace, municipal judges and county judges, imposing fine or imprisonment, or both, * * *.'

It will be observed that there are no exceptions to the right declared by the statute. The State does not content that there are any exceptions in the statute. It does contend substantially that this court in Kissinger v. State, 147 Neb. 983, 25 N.W.2d 829, has effectually declared that there may be no appeal to the district court from a conviction based on a plea of guilty.

The case does not so hold. No appeal was...

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5 cases
  • State ex rel. League of Neb. Municipalities v. Loup River Public Power Dist.
    • United States
    • Nebraska Supreme Court
    • 12 Febrero 1954
  • Abbott v. State, 33711
    • United States
    • Nebraska Supreme Court
    • 22 Abril 1955
    ...issue presented by the complaint of the State. That is the 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 app......
  • Anderson v. State
    • United States
    • Nebraska Supreme Court
    • 22 Febrero 1957
    ...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 N.W. 575;......
  • Stanosheck v. State, 34530
    • United States
    • Nebraska Supreme Court
    • 27 Febrero 1959
    ...has been imposed must accept all of the sentence or 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 and sentence on......
  • Request a trial to view additional results

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