Larson v. State

• Decision Date: 25 February 1913
• Docket Number: 17,875
• Parties: FRANK LARSON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

140 N.W. 176

93 Neb. 242

FRANK LARSON v. STATE OF NEBRASKA

No. 17,875

Supreme Court of Nebraska

February 25, 1913

ERROR to the district court for Merrick county: GEORGE H. THOMAS JUDGE. Affirmed as to conviction, and reversed as to costs.

Judgment of the district court affirmed as to the judgment of conviction, reversed as to the motion to retax costs, and cause remanded.

Martin & Bockes, for plaintiff in error.

Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.

LETTON J. REESE, C. J. dissents.

OPINION

LETTON, J.

The defendant was arrested upon a charge of assault and battery. He was taken before the county judge of Merrick county, arraigned upon the complaint, and pleaded not guilty. A jury was waived. Evidence was adduced by the state and by defendant, and both rested. After this was done, and before any decision, the county attorney moved the court to stop all further proceedings, and to put him upon a hearing for an offense not cognizable before a magistrate, and to proceed as in other criminal cases exclusively cognizable before the district court. The court sustained the motion, to which the defendant excepted. A new complaint was filed, charging an assault with intent to inflict great bodily injury, which is a felony. A warrant was issued and the defendant arrested on this charge. He objected to any hearing upon the latter complaint, for the reason that he had already been placed in jeopardy. This was overruled, and after a hearing the court found there was probable cause and bound him over to the district court.

In the district court an information was filed upon the same charge. The defendant interposed a plea in bar, setting forth specifically all the proceedings before the county judge, and pleading that he had already been placed in jeopardy, and by operation of law had been discharged and acquitted upon the charge of assault. A demurrer to this plea was filed by the state, which was sustained. The plea in bar was overruled, and a trial was had over his objections. The jury found that the defendant was not guilty of assault with intent to inflict great bodily injury, and found that he was guilty of assault. A motion to set aside that portion of the verdict finding the defendant guilty of assault and a motion in arrest of judgment were filed and overruled, and a fine and costs adjudged against the defendant.

After sentence, defendant also filed a motion to retax the costs, for the reason that the costs in the district court were made in the effort to convict him of the alleged crime of assault with intent to inflict great bodily injury, while the jury found that the defendant is not guilty upon that charge. This was also overruled.

The defendant assigns error of the district court in sustaining the demurrer to the plea in bar and in overruling the same, and further complains that the court erred in overruling the motion to retax the costs in the district court.

Section 327 of the criminal code provides: "If in the progress of any trial before a magistrate, under the provisions of this chapter, it shall appear that the defendant ought to be put upon his trial for an offense not cognizable before a magistrate, the magistrate shall immediately stop all further proceedings before him, and proceed as in other criminal cases, exclusively cognizable before the district court." The defendant insists that this provision is unconstitutional as in violation of section 12, art. I of the constitution, providing that no person shall be "twice put in jeopardy for the same offense." The constitutionality of this section we think is really not involved whichever view is taken as to the question of former jeopardy, because the first complaint might be for a misdemeanor not identical with the offense for which the defendant is bound over, and no such question could then arise. The real question presented is not whether this section is constitutional, but whether, when a defendant has been put upon trial for a misdemeanor before a magistrate and the trial has proceeded to such an extent that jeopardy is attached, this will be a bar to a subsequent prosecution for a like offense accompanied by such circumstances of enormity or aggravation as to bring it within a class made felonies by the statute.

A like question to that presented in this case was decided at an early day in the history of this state in the case of Thompson v. State, 6 Neb. 102. In that case a person was accused and tried upon the charge of petty larceny. The jury returned a verdict of guilty, and fixed the value of the property stolen at $ 35. Upon this verdict no judgment was rendered, but the magistrate required the accused to appear...