State ex rel. Gossett v. O'Grady

• Decision Date: 05 April 1940
• Docket Number: 30819.
• Citation: 291 N.W. 497,137 Neb. 824
• Parties: STATE EX REL. GOSSETT v. O'GRADY.
• Court: Nebraska Supreme Court

291 N.W. 497

137 Neb. 824

STATE EX REL. GOSSETT v. O'GRADY.

No. 30819.

Supreme Court of Nebraska.

April 5, 1940

Syllabus by the Court.

1. All criminal informations in this state shall be verified by the oath of the county attorney, complainant, or some other person.

2. All words descriptive of the capacity or character of the affiant contained in the verification of a criminal information may be entirely disregarded, and if otherwise complete such verification will still be sufficient.

3. Under the statute a proper verification of a criminal information by " some other person" is sufficient and renders additional verification by the prosecuting attorney unnecessary.

4. A judgment or sentence of a court of record in a criminal case is supported by the usual presumptions of validity and regularity when attacked collaterally. To obtain release from a sentence of imprisonment by habeas corpus, such sentence must be absolutely void.

5. " Habeas corpus is a collateral, and not a direct proceeding, when regarded as a means of attack upon a judgment sentencing a defendant." Hulbert v Fenton, 115 Neb. 818, 215 N.W. 104.

6. It is a general rule that where an objection is not made at the time prescribed by law, the objection is waived.

7. The failure of the county attorney, in person, to present and file a criminal information, and endorse or sign his name thereto, if omissions, are to be corrected by a motion to quash presented by defendant, and his failure to present such motion within the time prescribed by statute constitutes a waiver of all objections based thereon.

8. " A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement." 16 C.J. 403.

9. Query: Under the facts and circumstances set forth in this record, is not the " acting county attorney" herein to be considered as a deputy, appointed by a person having lawful authority to appoint, and a de facto officer whose official acts, so far as they affect the public or third persons, are valid?

Appeal from District Court, Lancaster County; Shepherd, Judge.

Habeas corpus proceeding by the State of Nebraska, on the relation of Glenn Gossett, against Joseph O'Grady. From an adverse judgment, the relator appeals.

Affirmed.

Olaf W. Osnes, of Omaha, for appellant.

Walter R. Johnson, Atty. Gen., and Geo. W. Ayres, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

EBERLY, Justice.

Glenn Gossett appeals from a final order entered in the district court for Lancaster county, in a habeas corpus proceeding instituted by him therein, which order determined that he was " not unlawfully imprisoned or deprived of his liberty by respondent," Joseph O'Grady; denied his application for release; dismissed his petition; and discharged the writ of habeas corpus theretofore issued on his application therefor.

The record discloses that William P. Mullen was a practicing attorney at law in Hall county, Nebraska, in June and July, 1936. Lloyd Kelly was at that time the County Attorney of Hall county, and, being about to be absent from the state, he asked William P. Mullen to take care of the duties of the county attorney's office. Mr. Mullen agreed to do so. On June 27, 1936, and while Mr. Kelly was absent from the state, occasion arose to file an information against Glenn Gossett, who is now the relator and appellant in this action, charging him with grand larceny, alleged to have been committed in Hall county. Mr. Mullen prepared, verified and filed such an information, and signed his own name to it as Acting County Attorney. On June 27, 1936, Glenn Gossett pleaded guilty to the charges contained in the information before Honorable E. G. Kroger, a judge of the district court for Hall county, Nebraska, and was sentenced to serve a term of five years in the Nebraska State Penitentiary. He was thereupon conveyed to the place of confinement pursuant to such sentence, and was thereafter imprisoned therein pursuant thereto. On August 1, 1939, he instituted the proceeding herein, and the final order thereafter entered denying relief, he now challenges by this appeal. His claim for relief is based upon the proposition that William P. Mullen had no legal right to sign, make, verify and file the information against him, and the information thus signed and filed by William P. Mullen was void, and the action of the trial court thereon was also void as being without jurisdiction.

The information, omitting the caption, is as follows: " Be It Remembered, That Wm. P. Mullen, Acting County Attorney in and for Hall County, and in the Eleventh Judicial District of the State of Nebraska, who prosecutes in the name and by the authority of the State of Nebraska, comes here in person into Court at this the April Term, A. D. 1936, thereof, and for the State of Nebraska gives the Court to understand and be informed that Glenn Gossett, late of the County aforesaid, did, on or about the 23rd day of June, A. D. 1936, in the County of Hall and the State of Nebraska aforesaid, then and there being, then and there unlawfully and feloniously did steal, take and carry away Fifty Dollars ($50.00)," etc.

This information is sworn to and verified by Wm. P. Mullen as the Acting County Attorney.

The proceedings of the district court, and the sentence imposed upon this information, are, in substance, as follows: " Whereas; At a regular term of the District Court for said county, which term was begun and held at the courthouse, in Grand Island, Nebraska, in said county, on the 13th day of April, 1936; Present, the Hon. E. G. Kroger, one of the judges of said court; And, Whereas, Wm. P. Mullen, Acting County Attorney in and for the County of Hall, State of Nebraska, on the 27th day of June, 1936, came into Court, and presented a certain information in due form of law, against Glenn Gossett for Grand Larceny, which information was by order of the Court filed and the cause docketed; and afterwards on the 27th day of June, 1936, further proceedings were had upon said information, to-wit: On Plea of Guilty, The said defendant Glenn Gossett was duly arraigned and entered his plea of guilty to the charge contained in the information. * * * And, Whereas, On the 3rd day of July, 1936, the said Glenn Gossett was duly arraigned before the Court for sentence, and was then by the said Judge sentenced, in these words: ‘ It is the sentence of the Court that the defendant be confined in the State Penitentiary at Lancaster, in Lancaster County, Nebraska, at hard labor, Sundays and Holidays excepted, for a period of five years. Solitary confinement to be no part of this sentence."

Originally section 8 of article I of the Constitution of 1866 required prosecutions for felonies, with certain exceptions, to be " on the presentment or indictment of a grand jury." In our Constitution of 1875 this provision was modified in part by adding thereto a proviso in the following terms: " Provided, That the Legislature may by law, provide for holding persons to answer for criminal offenses on information of a public prosecutor; and may, by law, abolish, limit, change, amend or otherwise regulate the grand jury system." Neb.Const.1875, art. I, sec. 10.

By chapter 108 of the session laws of 1885, approved March 9, 1885, there was duly enacted, " An Act to provide for prosecuting offenses on information and to dispense with the calling of grand juries except by order of the district judges."

The following constitutes excerpts of this legislation, as now carried in our Compiled Statutes of 1929, viz.:

Section 29-1601, Comp.St.1929, provides: " The several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try and determine prosecutions upon information, for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein, as they possess and may exercise in cases of the like prosecutions upon indictments."

By section 29-1602, it is provided, 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; he shall subscribe his name thereto," etc.

Section 29-1603 provides in part: " All informations shall be verified by the oath of the county attorney, complainant, or some other person, and the offenses charged therein shall be stated with the same fullness and precision in matters of substance as is required in indictments in like cases."

In section 29-1604 we find the following: " 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, to motions, pleadings, trials and punishments or the execution of any sentence, and to all other proceedings in cases of indictments, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as near as may be, apply to informations, and all prosecutions and proceedings thereon."

Embraced within the provisions thus made applicable to prosecutions by informations by such section 29-1604 are the following:

Section 29-1806: " The accused may except to an indictment by: First. A motion to quash; Second. A plea in abatement; Third. A demurrer."

Section 29-1807: " A motion to quash may be made in all cases, when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged."

Section 29-1811: " The accused shall be taken to have waived all defects which may be excepted to by a motion to...