Jurgenson v. State

• Decision Date: 21 February 1958
• Docket Number: No. 34289,34289
• Parties: Robert W. JURGENSON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 129

88 N.W.2d 129

166 Neb. 111

Robert W. JURGENSON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34289.

Supreme Court of Nebraska.

Feb. 21, 1958.

Syllabus by the Court

1. The statute directing the entry of the prisoner's plea on the back of the indictment also relates to an information and is not mandatory but directory merely, and the failure to so enter it is no ground for a reversal of the judgment.

2. A motion to withdraw a plea of guilty, and to be allowed to enter a plea of not guilty, addresses itself to the discretion of the trial judge before whom the plea is entered, and, in the absence of a clear abuse of that discretion, this court will not interfere.

3. Where the record shows that the defendant had full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, and entered his plea understandingly, the court may, without abusing its discretion, refuse to permit him to withdraw it.

James E. Abboud, Jr., Hugh J. Boyle, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

On April 17, 1957, Robert W. Jurgenson, plaintiff in error, hereinafter referred to as defendant, by information was charged with the crime of manslaughter in the district court for Douglas County. On April 18, 1957, the defendant was brought into court in the custody of the sheriff, and without counsel. It appearing that the defendant was in indigent circumstances and unable to employ counsel, upon motion of the county attorney the court appointed the public defender to represent the defendant. The defendant waived the filing of a complaint and preliminary examination, and, upon being arraigned, pleaded guilty to the charge of manslaughter. Sentence was deferred pending further investigation by the adult probation officer.

On April 30, 1957, the defendant was brought into court in custody of the sheriff, and counsel employed by defendant being present, the defendant was arraigned for sentence. Testimony was taken on the defendant's motion to withdraw his plea of guilty entered on April 18, 1957, and to enter a plea of not guilty. This motion was overruled by the court and the defendant was sentenced to imprisonment in the Nebraska State Penitentiary for a period of 10 years.

On May 6, 1957, the defendant filed a motion for new trial, and on May 20, 1957, defendant filed an amended motion for new trial. The motion for new trial was overruled. On May 28, 1957, the defendant gave notice of his intention to apply for a writ of error and requested the sentence imposed upon him be suspended and he be released on bond. This application was denied. The defendant brings error proceedings to this court.

The defendant made a statement at the central police station in Omaha to John J. Hanley, chief deputy county attorney of Douglas County, and Alvin Clinchard of the Omaha police department. The statement was taken by a court reporter at 4:10 p. m., on April 16, 1957. We set forth in substance the pertinent facts contained in this statement.

The defendant stated that he had been questioned previously concerning an incident that took place in his home on Sunday morning, and that he had requested the right to talk to the chief deputy cunty attorney of Douglas County at the time of this hearing; that it was his intention to give a second statement concerning the events that took place in his home on Sunday morning about 2 a. m., April 14, 1957; that he voluntarily made this statement, and had previously been advised that he did not have to make it and could stand upon his constitutional rights; that he understood his constitutional rights; that understanding such rights, he wished to give a statement; and that there had been no promises, threats, or abuse of any kind toward him, or anything like that to procure the statement. He further stated that on Saturday evening, April 13, 1957, he and his wife, Phyllis Jurgenson, with a woman referred to as Pat Dockweiler, went for a drive in his car. The three of them went to the Lee Bar and each had a drink of seltzer high and whiskey. They stayed in the Lee Bar about 30 minutes. The three of them left the Lee Bar and went to the Silver Tap. Arriving at the Silver Tap, they sat down in a booth and ordered a round of drinks. A man sitting at the bar came over to talk to the defendant. The defendant's wife and Pat Dockweiler were dancing together at the time. The man asked to join them. They all had a couple of rounds of drinks and left the Silver Tap about 10:30 p. m. They then went to the Gay Time Bar at Twenty-fourth and Leavenworth Streets, arriving there about a quarter to 11 or 11 o'clock. They occupied a booth and had a round of drinks. There were two men there whom Pat Dockweiler knew. These men joined the party, and they had another round of drinks. The man who joined them at the Silver Tap left. When the five of them were sitting at a large table, the defendant's wife danced with one of these men three or four times. The defendant's wife then went to a ladies rest room and the defendant followed her. The defendant asked her what she was doing and she said: 'I am writing down my name and phone number for Pat, * * *. This guy wants Pat's name and phone number, * * * I am going to give him mine,' or something like that, and said it was so that he could get hold of her. Then the defendant and his wife went back and sat down, the defendant asked her what she was doing with that paper, and she said she was going to give it to Pat. The defendant then suggested that they go home. This was between 12 and 12:30. They went home, the defendant's wife doing the driving. Upon arriving at their home, they sat in the car 15 or 20 minutes and discussed the matter of the defendant's wife giving her phone number. They kissed and made up while in the ber. They then went upstairs. After going upstairs, the defendant sat in the kitchen for a while and his wife went to the bathroom to get ready to go to bed. He asked her if she wanted him to fry a couple of steaks or get something to eat, and she said she did not want anything. After about 15 minutes, the defendant went to the bedroom and found his wife sitting on the edge of the bed in her night clothes. He sat down beside her and they again talked about the matter of the phone number. He told her she was lying about getting the address for Pat, and she said she was not lying. She then admitted that she was getting it for herself. He asked her: 'How come you are getting it for yourself?' She said: 'I don't know, I was drinking.' She had been drinking, but was not drunk. Then the defendant went to the dresser and got a gun and twirled it around a couple of times. His purpose was to scare his wife. He was mad. The gun had one shell in it. He twirled it around and it went 'bang.' After he had fired, he saw her head going over and he dropped the gun, or laid it down, and went to the telephone and dialed for help. The bullet had entered his wife's forehead and killed her. He was angry at her when he fired the shot.

The record shows that when the defendant entered his plea of guilty to the charge of manslaughter on April 18, 1957, he was accompanied by the public defender of Douglas County appointed by the court to defend him. The public defender stated to the court that he was present in court on April 18, 1957, when the defendant entered his plea of guilty of manslaughter; that he had talked to the defendant previous to that time and advised the defendant absolutely as to his constitutional rights; that he talked to the defendant on three occasions; that the defendant told him his story; that it was the defendant's desire to plead guilty, and the pulic defender advised him that he was entitled to a trial if he wanted it, that a man charged with the commission of a crime was deemed innocent until he was found guilty, and advised the defendant what his rights were again and asked him if he desired to plead guilty; and that the defendant intimated what he wanted to do.

A Mr. Hayes, an attorney in the office of the public defender, told the court he was present at the last conference had between the defendant and the public defender, and the defendant was fully advised as to his constitutional rights.

The public defender withdrew from the case and the defendant's employed attorney took over the proceedings thereafter.

On April 30, 1957, before sentence was pronounced, the defendant testified that he was and had been a pipe fitter since 1950; that he was married and the father of three children ages 10, 8, and 7; that he went through the fifth grade in school; that he was brought to jail by two detectives who questioned him; and that other people questioned him until about 6 o'clock in the morning. This would be Monday morning, April 15, 1957. The defendant further testified that he was questioned again later; and that about 4 days later he was brought to the county courthouse where he talked to the chief deputy county attorney, Mr. Hanley, who told the defendant that it was no accident, and that he was going to throw a first degree murder charge at him, that is, a first or second degree murder charge. This witness could not remember exactly, he was mixed up and everybody was talking. He further testified that Hanley said if he would tell his story the way Hanley wanted him to, then he would be charged with manslaughter; that he made the statement heretofore set out in substance; and that he talked to the public defender and was told by him of his rights and that he did not have to plead guilty. He was asked why he had pleaded guilty and his answer was: 'I don't know; I was scared, I guess.' He was asked: 'Q-- Scared of what? A-- Going to charge me with first degree murder. Q-- You were scared of their intimidations? ...