Roberts v. State
| Decision Date | 23 February 1945 |
| Docket Number | 31865. |
| Citation | 17 N.W.2d 666,145 Neb. 658 |
| Parties | ROBERTS v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An objection that a preliminary hearing in a criminal case has not been had is waived unless the defendant raises that question before he enters a plea of not guilty in the district court.
2. A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of section 11, art. I of our Constitution.
3. In the absence of statute, a person accused of an offense is not entitled as of right to representation by counsel upon his preliminary examination.
4. Section 29-1803, R.S.1943, requiring the court in certain cases to assign counsel to an accused person, who has not the ability to procure counsel, by its terms does not extend to the preliminary hearing.
5. The fact that the examining magistrate did not, on his own motion, provide counsel for the accused at the preliminary hearing is not a denial of due process of law.
6. The constitutional guaranties of right to counsel found in section 11, art. I of the Constitution of Nebraska, and Article VI of the Amendments to the Constitution of the United States, do not extend to the preliminary hearing before a magistrate.
7. The general rule is that a plea of guilty to a criminal offense on arraignment before a committing magistrate is admissible against accused as a confession on the trial for the offense charged.
8. It is highly improper for the prosecuting attorney in a criminal case to declare to the jury his personal belief in defendant's guilt, unless such belief is given as a deduction from the evidence.
L R. Doyle, of Lincoln, for plaintiff in error.
Walter R. Johnson, Atty. Gen., H. Emerson Kokjer, Deputy Atty. Gen and John H. Comstock, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE JJ.
Defendant was charged with and convicted of the crime of sodomy. He appeals. We affirm the decision of the trial court.
Defendant's principal assignment of error arises as the result of the following situation, as shown by the evidence. Late one evening, two police officers came upon the defendant and another man, then engaged in the commission of the offense charged. The two men were taken to the police station that night.
On the following day, defendant was taken before the municipal court for a preliminary hearing, pleaded guilty to the charge of sodomy, and was bound over to the district court. Thereafter, an information charging the offense was filed in the district court; the defendant, being present in court with his counsel, was arraigned, the information was read to him, and he entered a plea of not guilty, without in any way questioning the proceedings at the preliminary hearing.
Defendant argues that he was denied counsel at his preliminary hearing, in violation of section 11, art. I of the Constitution of Nebraska, and of Article VI of the Amendments to the Constitution of the United States. He raises the matter for the first time in his assignments of error and argument here. The objection raises the question as to the validity of the preliminary examination. The evidence of defendant, upon which this contention is based, was offered to explain his plea of guilty at the preliminary hearing, and was to the effect that when the information was read to him, he misunderstood the charge; that he thought it involved a charge of violating a parole; that he did not intend to plead guilty to a charge of sodomy; that he was not guilty of that offense. His testimony as to a request for counsel is that 'When I was booked and I asked to get in touch with an attorney or my folks, they wouldn't let me get in touch with nobody.' There is no testimony that he asked for an attorney or raised the question of counsel otherwise when he appeared before the court at the preliminary hearing.
Section 29-1812, R.S.1943, provides: '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.' Under this section, we have repeatedly held that the objection that the defendant in a criminal case has not had a preliminary examination is waived unless raised before he enters a plea of not guilty. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445; Reinoehl v. State, 62 Neb. 619, 87 N.W. 355; Greenough v. State, 136 Neb. 20, 284 N.W.
740. Section 29-1607, R.S.1943, provides that 'No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, * * * unless such person shall waive his right to such examination; * * *.' Under this provision we have held that it is too late after verdict to raise the objection that a preliminary examination has not been had, and that such objection must be raised, before going to trial, by motion to quash or by plea in abatement. Meyers v. State, 104 Neb. 356, 177 N.W. 177. Certainly, if the preliminary hearing as an entirety may be waived, then one step in that hearing may likewise be waived.
But, this decision need not rest on the procedural point alone. It is clear the preliminary hearing before the magistrate is not a criminal prosecution or trial within the meaning of section 11, art. I of our Constitution. It is in no sense a trial of the person accused. Its purpose is to ascertain whether or not a crime has been committed, and whether or not there is probable cause to believe the accused committed it. Latimer v. State, 55 Neb. 609, 76 N.W. 207, 70 Am.St.Rep. 403; Van Buren v. State, 65 Neb. 223, 91 N.W. 201; Adams v. State, 138 Neb. 613, 294 N.W. 396; R.S. 1943, sec. 29-506.
The rule is that in the absence of a statute a person accused of an offense is not entitled as of right to representation by counsel upon his preliminary examination. 16 C.J. § 579, p. 324; 22 C.J.S., Criminal Law, § 339, p. 498; Blanks v. State, 30 Ala.App. 519, 8 So.2d 450. Section 29-1803, R.S.1943, requiring the court to assign counsel to an accused person in certain cases, who has not the ability to procure counsel, by its terms does not extend to the preliminary hearing.
The sixth amendment to the Federal Constitution applies only to trials of criminal prosecutions in federal courts. Gaines v. Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Perkins v. Sheriff of Calcasieu Parish, D.C., 23 F.2d 892. In federal courts, the provisions of the sixth amendment distinctly mean a criminal prosecution against a person who is accused, and who is to be tried by a petit jury. Counselman v. Hitchcock, 142 U.S. 547, 563, 12 S.Ct. 195, 35 L.Ed. 1110. Also, in federal court, the preliminary hearing is not a trial within the meaning of the Constitution, and there is no invasion of constitutional rights if the accused is not represented by counsel at such a hearing. Burall v. Johnston, D.C., 53 F.Supp. 126.
The due process clause of the fourteenth amendment to the Constitution of the United States does not incorporate, as such, the specific guaranty of counsel found in the sixth amendment. Betts v. Brady, supra. The fact that the examining magistrate did not, on his own motion, provide counsel for the accused at the preliminary hearing certainly is not a denial of due process of law.
It necessarily follows that the constitutional guaranties of right to counsel, which defendant...
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Neb. Const. art. I § I-11 Rights of Accused
...hearing before a magistrate is not a criminal prosecution or trial within the meaning of this section. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 The question of whether a defendant has had a speedy trial is to be determined by what is fair and reasonable under all the facts and circumst......