Bush v. State

• Decision Date: 19 May 1898
• Citation: 75 N.W. 542,55 Neb. 195
• Parties: BUSH ET AL. v. STATE.
• Court: Nebraska Supreme Court

55 Neb. 195

75 N.W. 542

BUSH ET AL.

v.STATE.

Supreme Court of Nebraska.

May 19, 1898.

Syllabus by the Court.

1. A plea in bar is, by our statute, to be deemed a waiver of a plea in abatement, and this is held to follow where both pleas are presented by a single pleading.

2. Where the allegations of a plea in bar, liberally and fairly construed, substantially state that the prisoner has before, by a court having jurisdiction, had a judgment of acquittal, the truth of the averments of the plea must be determined by a jury.

Error to district court, Fillmore county; Hastings, Judge.

Joseph Bush and James Lovejoy were convicted of burglary, and bring error. Reversed.L. W. Billingsley and R. J. Greene, for plaintiffs in error.

The Attorney General, for the State.

RYAN, C.

The information in this case was filed in the district court of Fillmore county, and thereby the defendants were charged with having broken and entered, in the night-time, a certain bank building, and with having stolen therefrom a large sum of money. There was a conviction, and thereupon the defendants were sentenced to serve a term of seven years in the penitentiary. There were in the same pleading a plea in abatement and one in bar, but, as the plea in bar was a waiver of the plea in abatement (Cr. Code, § 444), we shall consider merely that in bar, which was in this language: “The defendants, having heard read the information herein, say: That the state of Nebraska ought not further to prosecute said information against them, because at the last term (1897) of the district court of Fillmore county, Nebraska, held in Geneva, in said county, they, the said James Lovejoy and Joseph Bush, under the names of Leonhard and Doe, but being in fact the same persons, were duly informed against by the county attorney of Fillmore county, Nebraska, on the same charge. They were duly arraigned in said court on said information, and pleaded not guilty thereto. That, after having pleaded not guilty, and being placed upon their trial, they were acquitted by being discharged of the offense charged in said information, and went acquit.” The above language very closely follows that in which the plea in bar was couched in Arnold v. State, 38 Neb. 752, 57 N. W. 378, and in that case the plea was held sufficient, both in form and substance. To the dual pleas in abatement and in bar there was in this case interposed a demurrer on two grounds, which were: “First, said plea includes a...