Luke v. State

• Decision Date: 14 April 1932
• Docket Number: 28236
• Citation: 242 N.W. 265,123 Neb. 101
• Parties: LESTER LUKE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

242 N.W. 265

123 Neb. 101

LESTER LUKE v. STATE OF NEBRASKA

No. 28236

Supreme Court of Nebraska

April 14, 1932

ERROR to the district court for Phelps county: J. W. JAMES, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Where two offenses of the same class, for connected acts, are charged in separate informations, and could have been charged as separate counts in the same information, the consolidation or trying together of such cases, especially with the consent of the defendant, is within the sound discretion of the trial court.

2. Upon a jury returning two separate verdicts of guilty upon two informations tried together to the same jury, the court should impose sentence for each offense, and such sentences will run concurrently, if the trial judge does not otherwise order. If such sentences are to run consecutively, he should provide that the second sentence shall begin at the termination of the first sentence, and not at any specific date.

Error to District Court, Phelps County; James, Judge.

Lester Luke was convicted of being an accessory after the fact of a larceny, and of unlawfully receiving the goods involved in the same larceny, and he brings error.

Affirmed.

Haney & Marcell, for plaintiff in error.

C. A Sorensen, Attorney General, and Clifford L. Rein, contra.

Heard before GOSS, C. J., DEAN, GOOD, DAY and PAINE, JJ., and LANDIS and RAPER, District Judges.

OPINION

PAINE, J.

This is a writ of error to the district court for Phelps county. The plaintiff in error, Lester Luke, hereafter called the defendant, was found guilty by a jury of being an accessory after the fact of a larceny, Comp. St. 1929, sec. 28-203, and also of unlawfully receiving the goods involved in the same larceny, Comp. St. 1929, sec. 28-513. For the accessory offense, the defendant was ordered punished by imprisonment in the county jail for 30 days and by a fine of $ 50. For the receiving offense, the defendant was sentenced to imprisonment in the state reformatory for a term of one to three years, said imprisonment to commence at the expiration of the other jail sentence.

Miss Dora Nelson, county attorney of Phelps county, filed two separate complaints against the defendant, one charging the accessory offense, and the other the receiving offense. At the hearing thereon, County Judge Backman found probable cause on each complaint, and bound the defendant over to the district court for trial on each charge. When called for trial in the district court at Holdrege, it was stipulated and agreed that both cases should be tried at the same time by the introduction of one set of witnesses, and tried to the same jury. The finding of the jury was guilty in each case and sentences on both verdicts were duly entered.

Plaintiff in error sets out, as reasons for a new trial, that the verdict was not supported by sufficient evidence, surprise in the addition of new names to the information, and errors of law at the trial.

1. Among the errors of law, the defendant contends that he has been deprived of his constitutional rights, as provided in section 11, art. I of the Constitution, in being tried simultaneously for two separate and distinct crimes, citing Stowe v. State, 117 Neb. 440, 220 N.W. 826, which holds: "Under section 10186, Comp. St. 1922, the court will not ignore 'error as to any matter of pleading or procedure' in a criminal action, when thereby the constitutional rights of the accused conferred by section 11, art I of the Constitution, have been violated by failure to give him proper notice of the 'nature and cause of accusation' against him."

It has been generally held that, where two offenses charged are of the same class, and for the same act, or for connected acts the consolidation or trying together of the two indictments is a matter which is within the sound discretion of the trial court, especially where the defendant consents to or requests such consolidation. In Coxbill v. State, 116 Neb. 604, 218 N.W. 414, the presiding judge, upon his own motion, required the trial of the defendant upon two complaints at the same time, and it was held by this court: "Two complaints accusing the same person of similar misdemeanors may, in the sound discretion of the trial judge, be tried together, where all the offenses could properly have been included in different counts of a single information." In In re Walsh, 37 Neb. 454, 55 N.W. 1075, it was held: "Where a person has been convicted at the same term of court of several distinct offenses, each punishable by imprisonment in the penitentiary, whether charged in separate informations or in separate counts of the same information, the court may impose a separate sentence for each offense of which the prisoner has been found guilty. In such case the judgment should not fix the day (as was done...