Moore v. State
| Decision Date | 24 November 1933 |
| Docket Number | 28924 |
| Citation | 251 N.W. 117,125 Neb. 565 |
| Parties | WINFRED H. MOORE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Morrill county: EDWARD F. CARTER JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In a criminal prosecution, after guilt of defendant has been legally established and subject to conditions prescribed by statute, " the court may, in its discretion, enter an order, without pronouncing sentence, suspending further proceedings and placing the accused on probation." Comp St. 1929, § 29-2214.
2. Where in a criminal cause the defendant has been legally sentenced, the trial court is powerless to suspend such sentence, but it may suspend its execution to permit a review of its judgment by an appellate court.
3. Order by district court, purporting to suspend sentence legally pronounced in a criminal action, for the purpose of placing defendant on probation, is a nullity.
Error to District Court, Morrill County; Carter, Judge.
Winfred H. Moore pleaded guilty to information charging him with violation of the state liquor law, and, to review an order revoking a former conditional order directing suspension of a jail sentence, defendant brings error.
Affirmed.
G. W. Irwin, for plaintiff in error.
Paul F. Good, Attorney General, and William H. Wright, contra.
Heard before GOOD, EBERLY and DAY, JJ., and CHAPPELL and LANDIS, District Judges.
From an order of the district court revoking a former conditional order directing suspension of a jail sentence imposed upon Winfred H. Moore, for a violation of the liquor law, Moore, hereinafter called defendant, prosecutes error.
October 12, 1931, defendant pleaded guilty to an information charging him with a violation of the state liquor law. The court sentenced defendant to pay a fine of $ 100 and costs and to imprisonment in the county jail for 90 days, and entered a further order directing that the jail sentence be suspended on condition that the fine and costs be paid at once, and that defendant should be law-abiding and of good behavior for a period of two years.
It appears from the record that in April, 1933, the premises where defendant resides were visited by the sheriff with a search warrant, and that, on search of the premises, 75 gallons of alcohol, 25 gallons of whisky, and other intoxicating liquors were found. Thereupon, complaint was filed against defendant, charging him with another violation of the liquor law, and the county attorney then made application to vacate the order suspending the jail sentence, entered October 12, 1931. Upon hearing, the court entered an order vacating the former order suspending the jail sentence.
Defendant contends that the court was without power to vacate the former order without the filing of a verified information, and that the evidence is insufficient to show that defendant had violated the conditions of the order of suspension.
The view taken of the situation presented by the record renders it unnecessary to consider the contentions made by defendant, but it is deemed proper to call attention to the case of Sellers v. State, 105 Neb. 748, 181 N.W. 862, wherein it was held: "In a proceeding to vacate a parole granted by the district court, the correct practice requires a verified information stating specifically the conduct constituting a violation of probationary conditions, but a proceeding by motion, stating that defendant violated his parole, may be sustained, if defendant had timely notice of a hearing, the assistance of counsel, the testimony of witnesses, and a fair and impartial trial."
The only statute authorizing district courts to place a defendant in a criminal proceeding upon probation is found in sections 29-2214 and 29-2215, Comp. St. 1929.
Section 29-2214 provides: "In case the said judge should find from the age of the accused, his former course in life, disposition, habits and inclinations, or that the offense of which he is found guilty is his first offense, and that from all the information obtainable the judge should be of the opinion that the accused would refrain from engaging in, or committing further criminal acts in the future, the court may, in its discretion, enter an order, without pronouncing sentence, suspending further proceedings and placing the accused on probation under the charge and supervision of a probation officer, or other suitable person." (Italics ours)
Section 29-2215, Comp. St. 1929, provides: ...
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