Jolly v. State

• Decision Date: 19 February 1895
• Citation: 43 Neb. 857,62 N.W. 300
• Parties: JOLLY v. STATE.
• Court: Nebraska Supreme Court

43 Neb. 857

62 N.W. 300

JOLLY

v.STATE.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. The failure of the trial court to number the different paragraphs of the charge to the jury, or to write the word “Given” on the margin of each instruction, as required by the statute, cannot be relied upon in this court for a reversal of the judgment, where no objection was specifically taken on that ground in the trial court at the time the charge was given.

2. A prosecution for a misdemeanor, where the penalty fixed by statute is restricted to a fine of not exceeding $100, and to imprisonment not exceeding three months, must be instituted within one year from the time such offense was committed.

3. On the trial of a prosecution for an assault and battery, it is error for the court to charge the jury that it was sufficient if they found the offense was committed within 18 months prior to the filing of the complaint.

4. The giving of such instruction is error without prejudice, where the undisputed evidence discloses that the act charged was committed less than a year prior to the filing of the complaint.

5. Instructions of which no complaint is made in the motion for a new trial or the petition in error will not be reviewed in this court.

Error to district court, Burt county; Scott, Judge.

John F. Jolly was convicted of assault, and brings error. Affirmed.H. Wade Gillis, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

NORVAL, C. J.

The plaintiff in error was convicted before a justice of the peace of an assault and battery. He thereupon appealed to the district court, where, on a trial to a jury, he was found guilty of an assault, and was sentenced to pay a fine of $100 and costs of suit.

The first error assigned is the failure of the court to number the different paragraphs of the charge to the jury, and to write the word “Given” on the margin of each instruction, as required by the statute. No exception was taken on the grounds stated when the instructions were read; hence the point is not available in this court. Gibson v. Sullivan, 18 Neb. 558, 26 N. W. 368;Trust Co. v. Hansen, 32 Neb. 449, 49 N. W. 456;City of Chadron v. Glover (Neb.) 62 N. W. 62.

It is next contended that the court erred in charging the jury that it was sufficient if they found the offense was committed within 18 months prior to the date of the filing of the complaint. The contention of his counsel is that the statute of limitations runs against this offense in 12 months from the time the same was committed. Section 256 of the Criminal Code, relating to the limitation of criminal prosecutions, provides that “no person or persons shall be prosecuted for any felony (treason, murder, arson and forgery excepted), unless the indictment for the same shall be found by a grand jury, within three years next after the offense shall have been done or committed. Nor shall any person be prosecuted, tried, or punished for any misdemeanor, or other indictable offense below the grade of felony, or for any fine or forfeiture under any penal statute, unless the indictment or information, or action for the same shall be found or instituted within one year and six months from the time of committing the offense, or incurring the fine or...