Lewis v. State

• Decision Date: 15 November 1883
• Citation: 17 N.W. 366,15 Neb. 89
• Parties: LEWIS v. STATE.
• Court: Nebraska Supreme Court

15 Neb. 89

17 N.W. 366

LEWIS

v.STATE.

Supreme Court of Nebraska.

Filed November 15, 1883.

Error from Washington county.

J. W. Tucker, for plaintiff.

The Attorney General, for defendant.

LAKE, C. J.

The record in this case does not present the question discussed by counsel for the prisoners in his brief. That question is whether a magistrate may lawfully change an information as to the alleged value of the property stolen from grand to petit larceny, and then, without its being again sworn to, force the accused to go to trial upon it. Clearly he may not. A magistrate has no right to alter an information in any material part of it without the consent of the person who made it; and, even when done with his consent, it should be reverified before any further step is taken under it. Where an information is found to be defective in any respect, a better practice than to change it is to make an entirely new one, on which the further prosecution of the case may proceed.

Respecting the change in question, the transcript from the county judge shows that after the accused had been brought before him, and while in lawful custody under a charge of grand larceny, he changed the complaint to one for a “misdemeanor.” But it was “not resworn to,” nor was any new warrant issued for the rearrest of the defendants. Thereupon the prisoners, by their attorney, “moved that they be discharged, for the reason that the court has no jurisdiction over the parties.” This motion was overruled and an exception taken, and the overruling of it is now assigned for error.

From this it will be observed that the only reason given for the motion was that the court had “no jurisdiction” over the prisoners, and that in overruling it the judge decided simply that he had. In this decision there was no error, for the reason that the prisoners were then in the presence of the magistrate, under a lawful arrest by virtue of a warrant duly issued charging them with the commission of a criminal offense; and although the complaint on which the warrant issued was changed, as stated, yet no objection being made to it on that account, it will, nevertheless, support a conviction for the offense which it now charges. The failure to object in the first instance must, after trial and judgment, be regarded as an assent to the change, which cannot afterwards be withdrawn. The court certainly had jurisdiction of the accused, for, if the result of the trial had been an acquittal instead of a...