Olson v. State
| Decision Date | 08 December 1925 |
| Docket Number | No. 24899.,24899. |
| Citation | 206 N.W. 1,114 Neb. 112 |
| Parties | OLSON v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
By entering a plea of not guilty to a criminal information, the defendant waives all defects therein which may be excepted to by a motion to quash or a plea in abatement.
Whether an application by the defendant in a criminal action for a change of venue should be granted rests largely in the sound discretion of the trial court. However, when it appears that there exists among the citizens of the county such a feeling of hostility and enmity toward the defendant as to render it improbable that he could secure a fair and impartial trial, it is error to deny the application.
Error to District Court, Valley County; Clements, Judge.
Frank I. Olson was convicted of arson, and he brings error. Reversed and remanded, with directions.Corcoran & Sprague, of York, and J. M. Lanigan, of Greeley, for plaintiff in error.
O. S. Spillman, Atty. Gen., and Lloyd Dort, Asst. Atty. Gen., for the State.
Heard before MORRISSEY, C. J., and DAY, GOOD, THOMPSON, and EBERLY, JJ.
Defendant prosecutes error to review the record of his conviction of the crime of arson. This case is before us for the second time. A former judgment of conviction was reversed by this court in Olsen v. State, 113 Neb. 69, 201 N. W. 969, reference to which is made for a statement of facts.
Among the errors assigned are that the information did not charge defendant with a crime; and error in refusing defendant's application for a change of venue.
The information charges that defendant procured and caused one Anderson to set fire to a barn, the property of defendant, insured against loss and damage by fire by the Sun Insurance Company, of London, England, a stock company, with intent to defraud the stock company. It is urged that the information is defective, in that it fails to charge that the insurance company was a corporation, if such was the fact, or, if a copartnership, in not so alleging and naming the individuals composing it.
[1] Whether the information was defective may well be doubted, but we find it unnecessary to determine that question. Section 10113, Comp. St. 1922, is as follows:
“The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.”
In this case defendant did not file a motion to quash or a plea in abatement. Had he attacked the information by motion, and had it been sustained, an amended information might have been filed, setting out the facts as to the corporate or partnership capacity of the insurance company. Having failed to make a timely attack upon the information in the manner provided by law, defendant has waived his right to now question its sufficiency.
[2] Denying defendant's motion for a change of venue presents a more serious question. From the record it appears that two newspapers are published in the city of Ord, the county seat of Valley county, wherein the offense was charged to have been committed and the trial had; that these newspapers have a very wide circulation and are generally read by the citizens of the county. The following items were published in these newspapers and were generally read:
A sworn, written confession, made by Anderson who set fire to the barn, and in which he charged that he did so at the request of defendant and for a promised money consideration,was published in full. The details of the fire and the great danger to the property owners in Ord from such a fire were set forth. The arrest of defendant; the facts relating to the...
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