Kennedy v. State
| Decision Date | 25 March 1960 |
| Docket Number | No. 34806,34806 |
| Citation | 170 Neb. 193,101 N.W.2d 853 |
| Parties | Edward D. KENNEDY, also known as Edward Kennedy, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a criminal case, after trial and conviction in the district court by a jury, error proceedings cannot be taken to this court by the defendant therein before a judgment has been rendered or a final order made by the court below, which judgment or final order must include a sentence.
2. However, in order to review alleged errors occurring during the trial, such errors must be pointed out to the trial court in a motion for new trial and a ruling obtained thereon.
3. Insofar as Fisher v. State, 153 Neb. 226, 43 N.W.2d 600, is in conflict herewith the same is overruled.
4. It is a prerequisite to our right to review the trial court's ruling on a defendant's rights under subdivision (2) of section 24-342, R.S.Supp., 1957, that the affidavit therein referred to is filed in the district court.
Jack L. Spence, Omaha, for plaintiff in error.
Clarence S. Beck, Atty. Gen., B. L. Packett, Asst. Atty. Gen., for defendant in error.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an error proceeding from the district court for Douglas County. On February 15, 1960, the defendant in error, the State of Nebraska, filed a motion to dismiss the petition in error filed herein 'for the reason that such Petition in Error has not been filed within the time prescribed by the laws of Nebraska, and this Court is, therefore, without jurisdiction in the premises.'
Plaintiff in error, Edward D. Kennedy, filed a petition in error, transcript, and poverty affidavit in the office of the clerk of this court on February 10, 1960. Section 29-2306, R.S.Supp., 1957, which is applicable here, provides as follows: 'In all criminal cases except when the punishment is capital, writs of error shall be issued by the Clerk of the Supreme Court upon the filing of a petition in error and transcript of the record of the proceedings of the district court and payment of a docket fee of twenty dollars to the Clerk of the Supreme Court; Provided, if any person desiring to obtain such writ of error shall file an affidavit with the clerk of the court that he is unable, on account of his poverty, to pay the costs, the clerk shall enter the suit upon the docket, and upon the entry of final judgment endorse the amount of costs upon the mandate, and the same shall be paid by the county in which the indictment was found.' The plaintiff in error complied with the provisions of this statute and this court has jurisdiction of the cause if the above were filed in time. See Goodman v. State, 131 Neb. 662, 269 N.W. 383.
Section 25-1931, R.R.S.1943, which we have held to be applicable and controlling in criminal cases, provides, insofar as here material, as follows: 'No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one calendar month after the rendition of the judgment or making of the final order complained of; * * *.' See, also, Lee v. State, 124 Neb. 165, 245 N.W. 445; Goodman v. State, supra; Fisher v. State, 153 Neb. 226, 43 N.W.2d 600; Cunningham v. State, 153 Neb. 912, 46 N.W.2d 636. It should be mentioned that 'judgments and sentences upon convictions for felonies and misdemeanors under the criminal code' are excepted from the procedures provided for by section 25-1912, R.R.S.1943.
The transcript shows that on October 15, 1959, plaintiff in error, Edward D. Kennedy, defendant below, was found guilty by a jury in the district court for Douglas County on two counts: The first, that of having in his possession burglary tools with the intent of breaking and entering, and the second, that of having in his possession concealed weapons. Thereafter, on October 20, 1959, plaintiff in error filed a motion in the district court to have the verdicts of guilty set aside and for a new trial. This motion was filed within the time provided therefor by section 29-2103, R.R.S.1943, and sets out therein some of the reasons contained in section 29-2101, R.R.S.1943, for granting a new trial. This motion was overruled by the trial court on November 30, 1959. Thereafter, on December 11, 1959, the trial court set down for hearing on December 21, 1959, count three of the information wherein plaintiff in error was charged with being an 'habitual criminal.' See Section 29-2221, R.R.S.1943. Hearing thereon was had accordingly and on that date the trial court found and adjudged plaintiff in error to be an habitual criminal as charged. Thereafter, on January 11, 1960, plaintiff in error was sentenced to serve 15 years in the penitentiary on each of said convictions, such sentences to run concurrently. the error proceeding in this court was filed within 1 calendar month thereafter. The question rises, what constitutes the making of a final order under section 25-1931, R.R.S.1943, in an error proceeding involving a conviction in a criminal case?
From a check of our holdings it would appear that we have never ruled directly on this question, although our holdings clearly indicate that in a criminal proceeding a conviction and sentence constitute a final order within the meaning of section 25-1931, R.R.S.1943 . See, Kountz v. State, 8 Neb. 294, 1 N.W. 142; Green v. State, 10 Neb. 102, 4 N.W. 422; Gartner v. State, 36 Neb. 280, 54 N.W. 516; Kock v. State, 73 Neb. 354, 102 N.W. 768; Farrington v. State, 116 Neb. 712, 218 N.W. 590; Hoover v. State, 126 Neb. 277, 253 N.W. 359; Goodman v. State, supra; Iron Bear v. State, 149 Neb. 634, 32 N.W.2d 130. See, also, 2 Am.Jur., Appeal and Error, § 140, p. 934; 24 C.J.S. Criminal Law § 1649, p. 245. As stated in 2 Am.Jur., Appeal and Error, § 140, p. 934: 'With reference to what satisfies the requirement of finality, it may be stated generally that no judgment will be regarded as final unless sentence is pronounced.'
We think the rule applicable is as follows: In a criminal case, after trial and conviction in the district court by a...
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...had been imposed or other final determination made on six of the counts of the information. Dodge v. People, 4 Neb. 220; Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853. On remand the hearings under the sexual sociopath act were held, at the conclusion of which, a jury having been waived by ......
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... ... 1210, 117 A.L.R. 929 ... The State points out that we have held many times that a judgment or final order must include a sentence. None of the cases cited involved a probation order. Apparently the last such pronouncement was in Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853, and it also held that error proceedings may be taken from the overruling of the motion for new trial, or the imposition of sentence, whichever is the later ... Historically the courts generally held that imposition of a sentence was ... ...
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Kennedy v. Sigler
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