Smith v. State
| Decision Date | 18 March 1903 |
| Docket Number | 13,060 |
| Citation | 94 N.W. 106,68 Neb. 204 |
| Parties | RAYMOND SMITH v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Sheridan county: JAMES J HARRINGTON, DISTRICT JUDGE. Indictment for burglary. Plea of guilty. Sentence to one year at hard labor in the penitentiary. Reversed.
REVERSED AND REMANDED.
Allen G. Fisher, for plaintiff in error.
This is a criminal cause brought here for review by the defendant who stands convicted of an alleged felony and has been sentenced to imprisonment in the penitentiary for a period of one year. The record is a peculiar one and leaves us in some doubt with reference to the lines on which the prosecution was conducted in the trial court. The particular crime to punish which the prosecution was instituted is not made certain and entirely clear from anything appearing in the record presented for review. The legal department of the state has not favored us with a brief or oral argument in support of the judgment entered by the trial court, from which we infer that it is not prepared to defend the regularity and validity of the proceedings resulting in the imposition of the sentence of imprisonment which the defendant seeks to have reversed.
The information under which the defendant was prosecuted contains two counts, the second of which unmistakably charges burglary, but this count, during the trial of the cause, was dismissed by the county attorney. There upon the defendant pleaded guilty to the charge contained in the first count, and moved in arrest of judgment that the count stated no crime under any of the criminal laws of the state. The motion was overruled and sentence pronounced and the defendant brings error, relying for a reversal principally on the ruling just mentioned.
The count of the information on which the sentence of imprisonment was imposed, omitting formal parts, charges that the defendant, on the 17th day of August, 1902, into a certain dwelling-house, describing it, feloniously burglariously, willfully, maliciously and forcibly did break and enter, with the intent then and there, one Hannah Swanson then and there being in such dwelling-house, unlawfully, purposely and feloniously, her the said Hannah Swanson to rape, ravish and carnally know against her will. As we interpret the record, the county attorney attempted to charge a crime under the provisions of section 49 of the Criminal Code, and this is the construction given the information by the trial court. This section provides that if any person shall willfully and maliciously, either in the day time or night season, enter any dwelling-house, and shall attempt to commit any of the several felonies therein enumerated, including the crime of rape, every person so offending shall be imprisoned in the...
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