Johnson v. State, 34701
| Decision Date | 11 February 1960 |
| Docket Number | No. 34701,34701 |
| Citation | 100 N.W.2d 844,169 Neb. 783 |
| Parties | Raymond W. JOHNSON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Any person charged with a criminal offense in the State of Nebraska is guaranteed, under the Constitutions of the United States and of the state, due process of law, which includes the right to trial by jury and the right to defend in person or by counsel.
2. The rights to trial by a jury and to be represented by counsel are personal privileges which may be waived.
Dryden & Jensen, Kearney, for plaintiff in error.
C. S. Beck, Atty. Gen., John Wenstrand, Asst. Atty. Gen., for defendant in error.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
In a criminal action in the district court for Buffalo County, Nebraska, prosecuted by the county attorney in the name of the State of Nebraska, Leonard Sebring and Raymond W. Johnson were charged by information with the offense of robbery. They were arraigned, pleaded guilty, and were sentenced to serve a term of 3 years in the State Penitentiary. The date of the arraignment, plea, and sentence was October 9, 1958.
On January 17, 1959, Johnson filed in the action an application for a writ of error coram nobis the purpose of which was to have the plea of guilty vacated and set aside and to have a trial to a jury on the charge of robbery. This application, after a hearing thereon by the court, was denied. Johnson, by petition in error filed in this court, seeks a reversal of the order denying his application for writ of error coram nobis. Johnson, who is plaintiff in error, will be referred to hereinafter as defendant and the State of Nebraska, as defendant in error, will be referred to as the State.
The application for the writ is of considerable length but in the light of the record made, the assignments of error, and the brief of the defendant, it becomes necessary to say with reference thereto only that the defendant pleaded that he was denied his constitutional right to be represented by counsel. The other pleaded matters on this account are not before the court for consideration. The pleaded matter was denied by the State. The State asserts in its brief that the cause of action was based upon the ground that the plea of guilty was induced by persons in authority and that the defendant did not knowingly waive his right to be represented by counsel.
These are matters which were set forth in the application and on which evidence was adduced but they do not appear in the assignments of error, which assignments of course provide the basis of consideration of the case by this court.
On this question of whether or not the defendant was denied the right to be represented by counsel, from the evidence given in person and the other evidence adduced on his behalf, it is clear that there was no such direct denial. The evidence of these witnesses was directly to the contrary. These witnesses, including the defendant, testified positively and unequivocally that the defendant was informed by the court that he was entitled to be represented by counsel. The evidence discloses without contradiction that when the defendant was brought before the court for arraignment the trial judge fully and carefully, at great length, explained to him his constitutional rights. The trial judge read to defendant the statute pursuant to which the information had been drawn; orally explained it; directed attention to the penalty for the offense and the authority of the court in relation thereto; told him that he could plead not guilty, guilty, nolo contendere, or stand mute; and explained the effect of each such plea or a failure to plead. The trial judge also advised him that he should not plead guilty unless he was guilty. The trial judge further advised him that he was entitled to a trial to a jury and that he was entitled to be represented by counsel. After having been thus advised the defendant counseled privately with his father and mother who were present with him in the courtroom, and perhaps more than 2 hours after he had been advised of his rights and without anything remotely in the nature of coercion or advice on the part of anyone else he came before the court and effectually told the court that he did not want to be represented by counsel...
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State v. Carpenter
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