Gaweka v. State

• Decision Date: 16 June 1913
• Docket Number: No. 17,826.,17,826.
• Citation: 94 Neb. 53,142 N.W. 287
• Parties: GAWEKA v. STATE.
• Court: Nebraska Supreme Court

94 Neb. 53

142 N.W. 287

GAWEKA

v.STATE.

No. 17,826.

Supreme Court of Nebraska.

June 16, 1913.

Syllabus by the Court.

An information or complaint must charge explicitly all that is essential to constitute the offense. It cannot be aided by intendment, nor by way of recital or inference, but must positively and explicitly state what the accused is called upon to answer.

A complaint under section 30 of the Criminal Code for resisting a municipal officer while attempting to make an arrest without a warrant, which does not allege that the offense was committed within the limits of the municipality of such officer, is fatally defective.

Error to District Court, Thayer County; Hurd, Judge.

Henry Gaweka, Jr., was convicted of resisting an officer, and brings error. Reversed and remanded.J. T. McCuistion, of Hebron, and F. W. Sloan and J. J. Burke, both of Geneva, for plaintiff in error.

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

FAWCETT, J.

From a conviction in the district court for Thayer county of a misdemeanor in resisting an officer and a fine of $1, the accused, whom we will designate as defendant, has prosecuted error to this court.

The amended complaint, under which defendant was tried and convicted, charges that defendant “did unlawfully and willfully resist, abuse, strike, and threaten to do bodily harm to the said M. O. Weidenheimer, village marshal of the village of Bruning, while the said officer was in the lawful performance of his duties as village marshal, and in the proper execution of his office; said Henry Gewecka, Jr., knowing said M. O. Weidenheimer to be village marshal, of the village of Bruning, contrary to the form of statutes,” etc.

[1][2] The first point urged for reversal is that the complaint is insufficient, in that it does not allege where the offense was committed, further than to aver that it was in Thayer county. This point is well taken. It is conceded that the marshal did not have a warrant for the arrest of defendant, but it is alleged in the complaint that the arrest was attempted to be made “for disturbing the peace and attempting to provoke an assault, same being done in the presence of the said village marshal.” As a village marshal the officer would have no authority, without a warrant, to make such arrest outside of the limits of his municipality. If he attempted to do so, defendant would be justified in resisting with all reasonable and necessary force. It will be observed that the complaint nowhere alleges that the offense was committed...