Lewis v. State

• Decision Date: 15 November 1883
• Citation: 17 N.W. 366,15 Neb. 89
• Parties: L. F. LEWIS ET AL., PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

17 N.W. 366

15 Neb. 89

L. F. LEWIS ET AL., PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 15, 1883

ERROR to the district court for Washington county. Heard below before SAVAGE, J., May 19, 1881.

AFFIRMED.

J Wesley Tucker, for plaintiff in error.

Consent cannot confer jurisdiction, nor convert that into an information which is not in law. Doyle v. State, 17 Ohio 225. No objection comes too late which discloses the fact that a person has been put to answer a crime in a mode violating his legal constitutional rights. Id. Nor can an information be changed, even with consent, so as to make it embrace charges not presented by the prosecuting witness (People v. Campell, 4 Parker, Crim. Rep., 386), nor so as to change it in any material respect. It is error to change the averments in an information. City of Burlington v. James, 17 Kansas, 221. In a criminal case the warrant is the basis of the right to try the defendant (Redmond v. State, 12 Kansas, 174 and 175), and in this case no warrant was ever issued. State v. Beebe, 13 Kan 589.

Isaac Powers, Jr., Attorney General, for the State.

If the record was improperly altered or amended the defendant should have applied to the county court for correction of the same before going to trial on such record, and by not seeking to have such corrections made, the defendants waived the right to afterwards insist that the failure to make such correction, or to have the information re-sworn to, was an irregularity calling for a reversal of the judgment especially after they have called a jury, permitted proof on behalf of the prosecution in support of the charges in such information to be introduced without objection, and on the part of defendants in denial of such charges, and the case finally submitted to such jury at defendant's instance.

OPINION

LAKE, CH. 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 re-verified 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 re-sworn to," nor was "any new warrant issued for the re-arrest of the defendants." Thereupon the prisoners by their attorney, ...