Morrow v. State
| Citation | 300 N.W. 843,140 Neb. 592 |
| Decision Date | 21 November 1941 |
| Docket Number | 31232 |
| Parties | FRED MORROW v. STATE OF NEBRASKA |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Douglas county: HENRY J. BEAL JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
1. The commencement of a criminal action is by filing a criminal complaint.
2. In order that jurisdiction may be conferred upon a magistrate, a complaint must be filed agreeable to the provisions of section 29-404, Comp.St.1929.
3. An oath to be valid must be an outward pledge by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God.
4. " The district court shall hear and determine any cause brought by appeal from a magistrate upon the original complaint, unless such complaint shall be found insufficient or defective, in which event the court, at any stage of the proceedings, shall order a new complaint to be filed therein and the case shall proceed thereon the same in all respects as if the original complaint had not been set aside." Comp.St.1929, sec. 29-613.
5. The right of a de facto deputy county attorney to act as such is not triable under a plea in abatement in a criminal action.
Error to District Court, Douglas County; Beal, Judge.
Fred Morrow, also known as Fred Marrow, was convicted of keeping and exhibiting gaming tables, devices and apparatus to win or gain money, or other property of value, and he brings error.
Reversed and remanded, with directions.
An " oath" to be valid must be an outward pledge by the person taking it that his attestation or promise is made under an immediate sense of responsibility to God. Comp.St.1929, § 29-404.
Boyle & Boyle, for plaintiff in error.
Walter R. Johnson, Attorney General, and Clarence S. Beck, contra.
OPINION
This is a criminal action which was commenced by the filing of a complaint in the municipal court of the city of Omaha, Douglas county, Nebraska, wherein the defendant, plaintiff in error, Fred Morrow, also known as Fred Marrow, in the language of the statute was charged with keeping and exhibiting gaming tables, devices and apparatus, to win or gain money or other property of value. A warrant was duly issued and the defendant was brought to trial before the court on November 9, 1939. He was duly and regularly arraigned and pleaded not guilty, whereupon a trial was had and the defendant was found guilty and sentence was imposed. From the judgment and sentence of the municipal court an appeal was taken to the district court for Douglas county.
On December 9, 1940, in the district court, the defendant moved to quash the complaint on account of defects appearing on the face of the complaint. This motion and the defects pointed out will be specifically discussed later on in this opinion. On the same day a plea in abatement was filed. On December 12, 1940, the motion to quash was overruled as was also the plea in abatement. Following these rulings the defendant was arraigned and, having refused to plead, a plea of not guilty was entered. After the entry of the plea a jury was duly impaneled. At this point the defendant objected to the presentation of the prosecution by Alfred A. Raneri on the ground that he was not a deputy county attorney. This objection was sustained, whereupon the formality of his appointment was carried out and he was then, over objection of the defendant, permitted, with a regular deputy county attorney, to continue to represent the prosecution. The trial then proceeded, resulting in conviction and sentence of the defendant on the charge contained in the complaint.
From this conviction and sentence the defendant has prosecuted error to this court.
The first assignment of error presented is the ruling of the district court on defendant's motion to quash the complaint. The objection is that the complaint is defective in form, and that it is improperly verified. Omitting formal parts the commencement is as follows: "The complaint and information of James T. English, county attorney, by Alfred A. Raneri, deputy of Douglas county aforesaid, made in the name of the state of Nebraska, before the judge of the municipal court, within and for the city of Omaha, in said county, this 26th day of October A. D., 1939, who, being duly sworn, on his oath says * * *." The complaint is signed and verified as follows:
The commencement of a criminal action is by filing a criminal complaint. Section 29-404, Comp. St. 1929, is the applicable provision and is as follows: "Whenever a complaint in writing and upon oath, signed by the complainant, shall be filed with the magistrate, charging any person with the commission of an offense against the laws of this state, it shall be the duty of such magistrate to issue a warrant for the arrest of the person accused, if he shall have reasonable grounds to believe that the offense charged has been committed."
This statute applies to felonies and misdemeanors alike as becomes apparent from a reading of section 29-402, Comp. St. 1929, which is a part of the same legislative act.
In order to confer jurisdiction upon a magistrate in a criminal case, a complaint must be filed agreeable to the provisions of this section of the statute. White v. State, 28 Neb. 341, 44 N.W. 443. This rule is supported by the decisions of other jurisdictions. Ex parte Burford, 7 U.S. 448, 3 Cranch 448, 2 L.Ed. 495; Curl v. People, 53 Colo. 578, 127 P. 951; Bissell v. Gold, 1 Wend. 210. There is sound reason for the rule which received the recognition of the common law. The reasoning is well stated in 4 Am. Jur. 11, sec. 11, as follows:
As will be observed there must be a complaint which must be in writing. The complaint must also be on the oath of the complainant. Certain of these essentials were in no sense complied with. It is sufficiently clear that James T. English, described as county attorney, is the complainant. It is also clear that the complaint is neither signed by him nor on his oath. On the face of the complaint it appears conclusively that all of the mechanics of signing and taking oath were performed for the complainant by Alfred A. Raneri who was described as a deputy county attorney.
The requirements of the statute in question were not satisfied by the taking of an oath for James T. English by Alfred A. Raneri. There was no legal oath. This court in Pumphrey v. State, 84 Neb. 636, 122 N.W. 19, has approved Bouvier's definition of an oath as "an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God." The complaint was on its face clearly defective.
In the municipal court no objection was raised as to the form or sufficiency of the complaint, and the defendant was duly and regularly arraigned and proceeded to trial. In that court he waived the defect. The question now arises, having waived the defects apparent on the face of the complaint in the municipal court, did he have the right to raise the question on his appeal to the district court?
This question is answered by section 29-613, Comp. St. 1929, which is as follows: "The district court shall hear and determine any cause brought by appeal from a magistrate upon the original complaint, unless such complaint shall be found insufficient or defective, in which event the court, at any stage of the proceedings, shall order a new complaint to be filed therein, and the case shall proceed thereon the same in all respects as if the original complaint had not been set aside."
It necessarily follows that, on attention being called to the defective complaint in question by motion to quash before plea, it became the duty of the district court to order a new and proper complaint to be filed, and thereafter to proceed with the trial on such new complaint.
Another error assigned is that the court erred in allowing Alfred A. Raneri to conduct the prosecution, it being asserted that he was not a duly and regularly qualified deputy county attorney. This objection is without merit. In the first place, Alfred A. Raneri, under the record presented here, was a de facto deputy county attorney, and his right to act in the capacity outlined herein was not triable under a plea in abatement. Gragg v. State, 112 Neb. 732, 201 N.W. 338.
The other errors complained of are directed to the sufficiency of the evidence to sustain a conviction. It would be an usurpation of power for this court to pass upon the sufficiency of this evidence in advance of its presentation to a jury upon a proper and sufficient complaint.
The district court should have sustained the motion of defendant to quash and should have ordered the filing of a proper and sufficient complaint.
We conclude, therefore, that the conviction of the defendant should be, and it is, reversed and the cause is...
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