Cubbison v. Beemer

• Decision Date: 04 June 1908
• Docket Number: No. 15,633.,15,633.
• Citation: 116 N.W. 862,81 Neb. 824
• Parties: CUBBISON v. BEEMER, WARDEN OF STATE PENITENTIARY.
• Court: Nebraska Supreme Court

81 Neb. 824

116 N.W. 862

CUBBISON

v.BEEMER, WARDEN OF STATE PENITENTIARY.

No. 15,633.

Supreme Court of Nebraska.

June 4, 1908.

Syllabus by the Court.

“Under the provisions of chapter 108, p. 397, of the Laws of Nebraska passed in 1885, the requirement that ‘all informations shall be filed during term, in the court having jurisdiction of the offense specified therein’ is mandatory, and an information, upon which the accused is to be tried for felony, is void if filed in vacation.” In re Vogland, 48 Neb. 37, 66 N. W. 1028.

Application of William M. Cubbison for writ of habeas corpus to A. D. Beemer, warden of the State Penitentiary. Petitioner discharged.W. A. McAllister, for plaintiff.

W. T. Thompson, Atty. Gen., W. N. Hensley, and G. G. Martin for defendant.

REESE, J.

This is an application for a writ of habeas corpus. The writ was issued, directed to the respondent who is the warden of the State Penitentiary, and who made return that he held the custody of the petitioner by virtue of a judgment of the district court of Platte county, by which the said Cubbison was convicted of a felony. A certified copy of the judgment of conviction is set out in the return. By the petition and all the record in this cause it is made to appear beyond dispute that the information, charging the accused with the commission of the offense for which he was convicted, was filed in the office of the clerk of the district court on the 28th day of February, 1908, and that the court was not then in session, having adjourned sine die on the 27th day of the same month; that the next term began on the second day of March following. This being true, it must be conceded that, under the holdings of this court in the matter of the application of Lewis Vogland, Salem T. Clark, and Charles H. Jackson for a similar writ, reported in 48 Neb. 37, 66 N. W. 1028, the petitioner is entitled to his discharge. Exhaustive briefs have been furnished by the county attorney and the Attorney General, and were it not that the court has held in the case above cited that: “This information (filed out of term time) was therefore void, and upon it no plea could be received or acted upon,” and that: “The requirement of filing in term is mandatory, and a filing in vacation cannot be substituted”--we would be strongly inclined to hold that the irregularity in failing to comply technically with the statutory provisions was waived by the proceedings subsequent to the filing of the...