Shepperd v. State, 34567

• Decision Date: 24 April 1959
• Docket Number: No. 34567,34567
• Court: Nebraska Supreme Court
• Parties: Clayton Laverne SHEPPERD, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

Page 261

96 N.W.2d 261

168 Neb. 464

Clayton Laverne SHEPPERD, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34567.

Supreme Court of Nebraska.

April 24, 1959.

Syllabus by the Court.

1. The State is required to furnish a defendant informed against for a felony with a copy of the information filed against him within 24 hours after such filing.

2. There is no specified time that must elapse between filing of an information or indictment and the commencement of trial thereon, except defendant may not without his consent he arraigned or required to answer it until at least 1 day after he has received a copy thereof.

3. All presumptions exist in favor of regularity and correctness of orders and judgments of courts of general jurisdiction, and he who asserts the contrary is required to establish a claimed defect or error by an exhibition of the record.

4. If the information informs the accused with reasonable certainty of the charge made against him, it is sufficient.

5. One charged with a crime, who becomes a witness in his own behalf upon his trial, is subject to the same rules that govern other witnesses upon cross-examination and may, on cross-examination, be interrogated as to matters brought out on direct examination.

6. If a witness is permitted to be cross-examined as to matters not brought out on his direct examination, a judgment in the case will not be reversed if it appears that no prejudice could have resulted therefrom.

7. Where assault with intent to commit rape is charged, the testimony of prosecutrix must be corroborated by facts and circumstances established by other competent evidence to justify conviction.

8. In a prosecution for assault with intent to commit rape, it is not essential to a conviction that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense. It is sufficient if she is corroborated as to material facts and circumstances which tend to support her testimony, and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn.

9. Where the trial court has by its instructions fully and correctly stated the law as it should be applied to the facts disclosed by the evidence in a criminal prosecution, it is not required to give further or additional instructions requested by the defendant.

10. Where, in a prosecution for assault with intent to commit rape, prosecutrix testifies unequivocally to facts which would constitute the offense, a sufficient corroboration is shown if opportunity and inclination, on the part of the defendant, to commit the offense are shown, and the circumstances proved by other witnesses tend to corroborate the testimony of prosecutrix.

11. Where several persons participate in the actual commission of a crime, the acts and declarations of any one of them, while so participating, are admissible against all the others.

John R. Sullivan, Ord, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff in error, Clayton LaVerne Shepperd, hereinafter referred to as defendant, was charged with the crime of assault with intent to commit rape. He was convicted and sentenced to be confined in the Nebraska State Reformatory. He brings the cause here by petition in error to seek to have the conviction and sentence vacated.

The defendant contends that the trial court committed prejudicial error in failing to quash the information, for the reason that a copy thereof had not been served upon the defendant or his counsel within 24 hours after the information was filed in the office of the clerk of the district court for Loup County.

Section 29-1802, R.R.S.1943, provides: 'The clerk of the district court shall, upon the filing of any indictment with him, and after the person indicted is in custody or let to bail, cause the same to be entered of record on the journal of the court; * * *. Within twenty-four hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff, the defendant or his counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant. No one shall be, without his assent, arraigned or called on to answer to any indictment until one day shall have elapsed, after receiving in person or by counsel, or having an opportunity to receive a copy of such indictment as aforesaid.'

Section 29-1602, R.R.S.1943, provides in part: 'All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant.'

Section 29-1604, R.R.S.1943, provides in part: 'The provisions of the criminal code in relation to indictments, and all other provisions of law, applying to prosecutions upon indictments to writs and process therein, and the issuing and service thereof, * * * shall in the same manner and to the same extent, as nearly as may be, apply to informations, and all prosecutions and proceedings thereon.'

In the instant case the information was filed January 29, 1958, in the office of the clerk of the district court for Loup County. The defendant was served with a copy thereof on Saturday night, October 11, 1958.

At the beginning of the trial, the defendant objected to any testimony of the prosecutrix because of the failure of the State to serve upon the defendant a copy of the information within the time specified by statute. The court overruled the objection.

The defendant cites Bush v. State, 62 Neb. 128, 86 N.W. 1062, wherein the court held: 'The state is required to furnish a defendant, informed against for a felony with one copy, and no more, of the information filed against him, within 24 hours after such filing.' To the same effect is Eigbrett v. State, 111 Neb. 388, 196 N.W. 700, and Hoctor v. State, 141 Neb. 329, 3 N.W.2d 558.

On Monday morning, October 13, 1958, the defendant was arraigned in the district court. He was asked by the court if he had been served with a copy of the information, and replied that he had been served with a copy on Saturday night. The information was then read to him by the county attorney, and the defendant entered a plea of not guilty. The defendant was represented by counsel at that time.

The obvious purpose of section 29-1802, R.R.S.1943, relative to service of a copy of an indictment or information, is to insure the defendant a reasonable time in which to prepare his defense. Why a copy of the information was not served upon the defendant until October 11, 1958, does not appear in the record. It does appear from the record, however, that the defendant had been a member of the United States Air Force for 2 years and 4 months, and had been stationed at Las Vegas, Nevada. Perhaps these facts account for the delay in serving the information.

It is true that the defendant was not served with a copy of the information within 24 hours after it was filed, or, in fact, until several months thereafter. The question presented is, were the defendant's rights prejudiced thereby?

In Darlington v. State, 153 Neb. 274, 44 N.W.2d 468, this court said: 'There is no specified time that must elapse between filing of an information or indictment and the commencement of trial thereon, except defendant may not without his consent be arraigned or required to answer it until at least one day after he has received a copy thereof.'

In the event the defendant was unable to prepare his defense, a proper remedy would have been for him to file a motion for continuance or postponement of the trial. No affidavits were filed or showing of any kind made by the defendant to indicate that any of his rights were prejudiced by the delay in serving a copy of the information on him.

'All presumptions exist in favor of regularity and correctness of orders and judgments of courts of general jurisdiction, and he who asserts the contrary is required to establish a claimed defect or error by an exhibition of the record.' Darlington v. State, supra.

We find the defendant's assignment of error to be without merit.

The defendant predicates error on the failure of the trial court to sustain his motion to quash the information for the reason that it was defective in failing to allege all of the essential elements of the offense charged, and deprived the defendant of his constitutional and statutory rights.

The information charged, in part: '* * * that Clayton LaVerne Shepperd * * * did then and there feloniously assault Bertha Sarnowski a female child under age of 15 years, with the intent of him the said Clayton LaVerne Shepperd to commit a rape upon the said Bertha Sarnowski, * * *.' It is the theory of the defense that this information was defective in that it does not specify that the defendant had the intent to 'then and there' commit a rape.

Section 28-409, R.R.S.1943, provides in part: 'Whoever assaults another with intent to commit a murder, rape, sodomy or robbery upon the person so assaulted, shall be imprisoned in the penitentiary * * *.' This is the section of the statutes under which the defendant was charged. It will be observed that the statute does not require that the assault must be accompanied by an intent to commit a rape 'then and there.' The language of the information substantially follows the language of the statute.

In Emery v. State, 138 Neb. 776, 295 N.W. 417, this court said: 'It is generally sufficient in an information to describe the crime charged in the language of the statute * * *.' See, also, Pandolfo v. State, 120 Neb. 616, 234 N.W. 483.

If the information informs the accused with reasonable certainty of the charge made against him it is sufficient. See May v. State, 153 Neb. 369, 44 N.W.2d 636.

We...