Stanosheck v. State, 34530

• Decision Date: 27 February 1959
• Docket Number: No. 34530,34530
• Citation: 95 N.W.2d 197,168 Neb. 43
• Parties: Patrick J. STANOSHECK, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 197

95 N.W.2d 197

168 Neb. 43

Patrick J. STANOSHECK, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34530.

Supreme Court of Nebraska.

Feb. 27, 1959.

Syllabus by the Court

1. The provisions of section 29-2103, R.R.S.1943, are mandatory and a motion for new trial in a criminal action must be filed with 10 days after the verdict or judgment is rendered in order to be considered on appeal, except for the cause of newly discovered evidence or unless the defendant was unavoidably prevented from filing the motion within 10 days.

2. The words 'unavoidably prevented' as used in section 29-2103, R.R.S.1943, are equivalent in meaning to circumstances beyond the control of the party desiring to file the motion for new trial. The law requires diligence on the part of clients and their attorneys, and the mere neglect of either will not entitle a party to relief on that ground.

F. W. Carstens, Beatrice, for plaintiff in error.

C. S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

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

CHAPPELL, Justice.

An admittedly proper information, filed by the State on November 21, 1957, in the district court for Gage County, charged defendant, Patrick J. Stanosheck, with grand larceny. He employed and was advised by an able lawyer.

On the morning of February 27, 1958, defendant appeared in open court with such lawyer and was arraigned. Thereat, the information was read aloud in open court and defendant's legal and constitutional rights were explained and protected in every material respect by the court. Defendant voluntarily pleaded guilty to the charge, whereupon the court rendered judgment of guilty as charged, and so advised defendant and his lawyer in open court.

Thereafter, at request of the court and in open court, the county attorney outlined in substance the facts with relation to the alleged offense. In substance the facts were as follows: At 2 or 3 a. m. on October 21, 1957, defendant, who had been drinking liquor for a couple of days, drove a truck belonging to another party out to the farm of one Richardson near Odell in Gage County. There, in two trips, with the aid of a cattle chute, defendant loaded 11 head of branded cattle belonging to Richardson into that truck. Thereby defendant transported such cattle over to his own farm, then transferred them to another truck, and they were driven to the stockyards in St. Joseph, Missouri. The same day Richardson discovered his loss and informed the sheriff thereof. An investigation was then made, and the cattle were found and recovered. Ten head were found in the St. Joseph stockyards just before they were to be sold in defendant's name, and one head was later found at defendant's farm. Thereafter, defendant was apprehended and in a conversation with Richardson defendant told him that he was short of money; that the temptation was too great; and that he had taken the cattle which, without dispute, had a fair market value of $1,800.

After defendant's arraignment, plea of guilty, and judgment of guilty had been rendered, a plea for probation was made in defendant's behalf by his lawyer, whereat evidence was adduced in support of the plea and same was submitted to the court. In that connection, several friends and neighbors testified in defendant's behalf. A general summary of their testimony was that they thought defendant had learned his lesson and that he would obey the terms of probation; that he had a wife and eight good, intelligent children whose ages were from 3 to 18 years; and that defendant could become a good citizen if he would do more for his family, as he had promised to do, instead of gambling and the like. In that connection, the court also recalled in open court, and it is not disputed, that once before defendant had committed one of the most serious crimes, and had been granted the mercy of the court and placed on probation.

Having been thus fully advised, the court denied plaintiff's plea for probation, so informed him and his lawyer in open court, and asked defendant if he had anything to say as to why sentence should not be passed upon him. Thereupon defendant orally responded, but the court decided that he had shown no good cause, whereupon he was sentenced to be imprisoned in the penitentiary of the State of Nebraska at Lincoln for a period of not less than 3 years nor more than 5 years, as authorized by the grand larceny statute, section 28-506, R.R.S.1943. Defendant was then ordered to pay the costs of prosecution and to stand committed until such costs were paid or secured, and he was otherwise discharged according to law.

Following the hearing, defendant was given an opportunity to briefly visit with his brother and his lawyer, and was then taken to the county jail. There he had his noon meal and was permitted to visit with his wife. That same afternoon defendant was taken to the penitentiary by the sheriff and his deputy, where defendant was required to undergo a period of orientation for several days during which time he made no attempt to be permitted to contact his lawyer or any other lawyer.

However, thereafter on June 25, 1958, about 4 months after judgment and sentence, a motion for new trial was filed in the district court for Gage County by a lawyer for defendant who had not theretofore represented him. Such motion, after assigning in substance that the judgment and sentence of the court was an abuse of discretion and contrary to law, recited: 'That this application by motion for a new trial has not been filed within the 10 day period of time provided for in Section 29-2103, R.S.Neb.1943, for the reason that the defendant was unavoidably prevented from making such application due to circumstances wholly beyond his control.'

Thereafter, on August 14, 1958, a hearing was held in the district court whereat evidence was adduced on defendant's motion for new trial, and on August 25, 1958, his motion was overruled. Thereafter, defendant prosecuted error to this court, assigning, as far as important here, that the trial court erred in overruling his motion for new trial. As we view it, the primary and controlling question is whether or not defendant was unavoidably prevented from filing his motion for...