McQueen v. Jones

• Decision Date: 03 March 1949
• Docket Number: 32584.
• Citation: 36 N.W.2d 271,150 Neb. 853
• Parties: McQUEEN v. JONES, Warden.
• Court: Nebraska Supreme Court

36 N.W.2d 271

150 Neb. 853

McQUEEN v. JONES, Warden.

No. 32584.

Supreme Court of Nebraska

March 3, 1949

Syllabus by the Court.

In the absence of a bill of exceptions and a motion for a new trial a judgment will be affirmed where the pleadings state a cause of action or defense and support the judgment rendered.

Ralph McQueen, pro se.

James H. Anderson, Atty. Gen., and Walter E. Nolte, Asst. Atty Gen., for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL WENKE, and BOSLAUGH, JJ.

MESSMORE Justice.

The petitioner appeals from the judgment of the district court for Lancaster County denying his release from the Nebraska State Penitentiary on a writ of habeas corpus. James M Jones, warden of the penitentiary, is the respondent and appellee.

For convenience the appellant will be referred to as the petitioner and the appellee as the respondent.

The petitioner alleged in his application, in substance, that he had been confined in the Nebraska State Penitentiary since March 1947; that on March 10, 1947, he appeared before the district court for Keith County, Nebraska, to answer to an information containing six counts of unlawfully making issuing, uttering, and delivering no-fund checks with the intent to defraud. Const No. 6 carried the additional charge that the petitioner was an habitual criminal. He was represented by counsel appointed by the trial court.

It appears from the journal entry in the case, which is a part of the record, that upon motion of the county attorney the first five counts were dismissed; that the court informed the petitioner of his right to counsel and appointed counsel for him; that the petitioner expressed a willingness to plead guilty to count No. 6 of the information; and that the court made inquiry of the petitioner as to his previous convictions of felonies as charged in such count and upon the petitioner's entrance of a plea of guilty to count No. 6 of the information, sentenced him to ten years in the state penitentiary at Lincoln, Nebraska.

The petitioner alleges that the proceedings had in the district court for Keith County denied him his rights and privileges guaranteed to him under the federal Constitution for the reason that he was denied and deprived of the fundamental right to the assistance of counsel for his defense, and did not knowingly and intelligently understand the nature of the accusation of which he was charged and to which he was to answer; and that the trial court was without jurisdiction to impose sentence on the petitioner.

The return to the writ discloses the petitioner was charged as heretofore mentioned, and in count No. 6 was charged with having been previously convicted of felonies on three separate occasions and confined in penal institutions wherein, in each instance the sentence was not less than one year; further, that ...