Rains v. State, 31395.
| Court | Supreme Court of Nebraska |
| Writing for the Court | CARTER |
| Citation | 5 N.W.2d 887,142 Neb. 284 |
| Parties | RAINS v. STATE. |
| Docket Number | No. 31395.,31395. |
| Decision Date | 16 October 1942 |
RAINS
v.
STATE.
No. 31395.
Supreme Court of Nebraska.
Oct. 16, 1942.
Appeal from District Court, Gage County; Ellis, Judge.
Calvin Rains was convicted of breaking and entering a barn with intent of steal personal property and of larceny, and he brings error.
Affirmed.
[5 N.W.2d 888]
1. The habitual criminal law of this state does not purport to create a new and separate criminal offense, but provides merely that the repetition of criminal conduct aggravates the guilt and justifies greater punishment.
2. When a person is charged in an information with a crime which is made a felony by statute, and it is properly alleged further that said person has been twice previously convicted of crime, sentenced and committed to prison for terms of not less than one year, the requirements of the habitual criminal statute, section 29-2217, Comp.St.Supp.1939, have been met.
3. When an offense is not designated by the statute which creates it, either as a felony or misdemeanor, but its punishment is prescribed, then the grade or character of the offense is determined by section 29-102, Comp.St.1929, and the maximum punishment which the statute authorizes.
4. The crimes necessary to be charged and proved to bring a person within the habitual criminal law must not only be felonies, but they must be felonies in which the defendant was sentenced and committed to prison for one year or more.
5. The habitual criminal law, section 29-2217, Comp.St.Supp.1939, held not violative of sections 1, 3 and 11, art. I of the Constitution of Nebraska, and articles V, VI and XIV of the amendments to the Constitution of the United States.
6. A judgment or sentence of a court of record in a criminal case is supported by the usual presumption of validity and regularity, and, consequently, the failure to specify the offense for which defendant was convicted will not make a certified copy of the judgment inadmissible in a prosecution where the habitual criminal law is operative.
7. In the absence of evidence to the contrary, it will be presumed that the provisions of section 29-2401, Comp.St.1929, with reference to the commitment of convicted persons who have been sentenced, have been properly performed by the officers charged with so doing.
8. Evidence examined and held sufficient to sustain the verdict of the jury.
Hubka & Hubka, of Beatrice, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and John H. Comstock, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and EBERLY, CARTER, MESSMORE, and YEAGER, JJ.
CARTER, Justice.
Plaintiff in error, hereafter referred to as the defendant, was convicted of breaking and entering a barn, the property of one Tony Shalla, with intent to steal personal property belonging to the said Shalla. The jury also found that defendant had previously been convicted of more than two crimes against the state, in each of which he had been sentenced and committed to the penitentiary for periods exceeding one year, thus bringing the crime within the provisions of the habitual criminal statute. Defendant was sentenced to serve ten years in the penitentiary for this offense. Defendant was also convicted of larceny of personal property of the value of $17.40 belonging to Shalla, and sentenced to pay a fine of $5 and costs for so doing. From these convictions and sentences defendant appeals.
Defendant complains of the trial court's action in permitting the amendment
[5 N.W.2d 889]
of the information by adding other convictions required to be established under the habitual criminal law without a preliminary hearing being held thereon. It is not questioned that a preliminary hearing was held in which it was determined that the crime of burglary had been committed and that probable cause existed that defendant committed the crime. This meets all requirements of law and the action of the trial court was in no way prejudicial to the rights of defendant.
It is next urged that the information is fatally defective in that it does not allege a “conviction of a felony,” the term used in the habitual criminal statute. This statute, section 29-2217, Comp.St.Supp.1939, defines an habitual criminal as follows: “Whoever has been twice convicted of crime, sentenced and committed to prison, in this or any other state, *** for terms of not less than one year each, shall upon conviction of a felony committed in this state after the taking effect of this Act, be deemed to be an habitual criminal ***.” The use of the words “conviction of a felony” is not required in the information. If the information charges a crime which is a felony under our statutes, the requirements of the habitual criminal law have been met. It is then urged that the crime charged does not constitute a felony because the punishment is not necessarily a sentence to the penitentiary for one year or more. The statutory punishment for burglary is imprisonment in the penitentiary not more than ten years nor less than one year, or by a fine not exceeding $500, or imprisonment in the jail of the county not exceeding six months. Comp.St.1929, § 28-538. Defendant contends that, as the sentence might be less than...
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State v. Jackson, 86-667
...123 (1981); State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965); Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947); Rains v. State, 142 Neb. 284, 5 N.W.2d 887 In a sentence hearing, a court, generally, has broad discretion concerning the source of information and the type of information......
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State v. Steffenson, 10667
...issue of prior convictions. State v. Graham, 68 W.Va. 248, 69 S.E. 1010; 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; Rains v. State, 142 Neb. 284, 5 N.W.2d Page 565 887; Murphy v. State, 50 Ariz. 481, 73 P.2d 110; People v. Palm, 245 Mich. 396, 223 N.W. 67, and Mann v. State, 200 Kan. 422, 43......
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State v. Losieau, 37059
...is not persuasive. See, State v. Konvalin, 179 Neb. 95, 136 N.W.2d 227; Poppe v. State, 155 Neb. 527, 52 N.W.2d 422; Rains v. State, 142 Neb. 284, 5 N.W.2d 887; Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82.' See, also, Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d In Davis v. O'Gr......
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State v. Bundy, 36354
...... In Rains v. State, 142 Neb. 284, 5 N.W.2d 887, this court in its opinion stated: 'Defendant urges that proof of commitment, as required by the habitual ......
-
State v. Jackson, 86-667
...123 (1981); State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965); Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947); Rains v. State, 142 Neb. 284, 5 N.W.2d 887 In a sentence hearing, a court, generally, has broad discretion concerning the source of information and the type of information......
-
State v. Steffenson, 10667
...issue of prior convictions. State v. Graham, 68 W.Va. 248, 69 S.E. 1010; 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; Rains v. State, 142 Neb. 284, 5 N.W.2d Page 565 887; Murphy v. State, 50 Ariz. 481, 73 P.2d 110; People v. Palm, 245 Mich. 396, 223 N.W. 67, and Mann v. State, 200 Kan. 422, 43......
-
State v. Losieau, 37059
...is not persuasive. See, State v. Konvalin, 179 Neb. 95, 136 N.W.2d 227; Poppe v. State, 155 Neb. 527, 52 N.W.2d 422; Rains v. State, 142 Neb. 284, 5 N.W.2d 887; Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82.' See, also, Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d In Davis v. O'Gr......
-
State v. Bundy, 36354
...... In Rains v. State, 142 Neb. 284, 5 N.W.2d 887, this court in its opinion stated: 'Defendant urges that proof of commitment, as required by the habitual ......