Kock v. State

• Decision Date: 08 March 1905
• Docket Number: 14,114
• Citation: 102 N.W. 768,73 Neb. 354
• Parties: HENRY KOCK v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

102 N.W. 768

73 Neb. 354

HENRY KOCK v. STATE OF NEBRASKA

No. 14,114

Supreme Court of Nebraska

March 8, 1905

ERROR to the district court for Cuming county: GUY T. GRAVES JUDGE. Proceeding in error dismissed.

Objections sustained, and proceedings dismissed.

T. M Franse and Moodie & Burke, for plaintiff in error.

Norris Brown, Attorney General, W. T. Thompson and M. McLaughlin contra.

OPINION

BARNES, J.

At the January term, 1904, of the district court for Cuming county, the plaintiff in error was convicted of the crime of grand larceny, and the value of the property stolen was found to be $ 60. On the 30th day of January of that year, he was sentenced to imprisonment in the penitentiary for the period of six years. On the 24th day of January, 1905, he instituted proceedings in error in this court, and the attorney general now objects to the jurisdiction of the court and moves to dismiss the proceedings in error because they were not commenced within the period prescribed by law.

The provisions of law by virtue of which the accused seeks to have his case reviewed by this court are sections 592 of the civil code and 508 of the criminal code. We quote section 592, as follows:

"No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within six calendar months after the rendition of the judgment or making of the final order complained of; except that when the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, he shall have one year, exclusive of the time of his disability within which to commence such proceedings: Provided, That the provisions of this act shall only apply to judgments or decrees rendered after the date of its taking effect."

By section 508 it is provided:

"In all criminal cases, 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 costs as in civil cases; Provided, That 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 said costs, the clerk shall enter the suit upon the docket, and upon the entry of final judgment indorse the amount of costs upon the mandate, and the same shall be paid by the county in which the indictment was found."

The question presented is not a new one in this state. It was before the supreme court in a case wherein the accused had been found guilty of murder in the second degree, and sentenced to a term of 25 years in the penitentiary. Kountz v. State, 8 Neb. 294, 1 N.W. 142. In that case the accused was sentenced on the 17th day of April, 1877, but did not file his petition in error and the transcript until April 19, 1878, and the attorney general challenged the jurisdiction of the court on the ground that the statute of limitations had run against such a proceeding. At that time the limitation was fixed by the sections above mentioned at one year, and the court held:

"Proceedings in error in a criminal case must be instituted in the supreme court within one year after the rendition of the judgment."

The reasoning contained in the body of the opinion in that case, and which meets with our approval, is as follows:

"In this state a writ of error is a writ of right in both civil and criminal cases. And the practice in both classes of cases is assimilated as far as possible. It is evident that the language of the section referred to" (section 508 of the criminal code, now section 2644 Annotated Statutes) "includes also the time within which proceedings in error may be instituted. * * * He" (meaning the accused), "is entitled to a bill of exceptions, and after calling the attention of the court below to the errors complained of, may have the entire case reviewed on error in the supreme court. When may he do this? Can he wait until the material witnesses for the state are dead, or have gone beyond the reach of process--let that time be five, ten, or twenty years, then prosecute proceedings in error? We do not think so. If the party convicted is innocent of the offense with which he is charged--that is, if the testimony fails to establish his guilt with that degree of certainty required by the law--if error has occurred during the progress of the trial by which he has been prejudiced, the case should be reversed and a new trial awarded. There is nothing that the law abhors like the conviction of an innocent person. For this reason, among others, criminal cases take precedence in the hearing of causes, in order that the party, if innocent,...