State v. Allen

Decision Date12 November 1954
Docket NumberNo. 33579,33579
Citation159 Neb. 314,66 N.W.2d 830
PartiesThe STATE of Nebraska, Appellant, v. Frank P. ALLEN, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court.

1. Exhibits which are introduced in evidence in a case, or excluded therefrom, must be brought before the reviewing court in the record if the action of the lower court is to be reviewed.

2. Affidavits used on the hearing cannot be considered in the appellate court unless preserved by a bill of exceptions.

3. On appeal, error will not be presumed, but must affirmatively appear in the record.

4. In the absence of a bill of exceptions it will be presumed that issues of fact presented by the pleadings were established by the evidence, and were correctly decided, and in such situation the only issue on appeal is the sufficiency of the pleadings to support the judgment.

5. Property seized in enforcing a criminal law is in the custody of the court, and proper procedure for the return of the property taken in a criminal case is to apply to the court for its return, especially if the property has been offered in evidence.

6. A court which has in its possession and control property involved in litigation may exercise exclusive jurisdiction over such property to determine the right of possession thereto.

7. The trial court is vested with legal discretion in the matter of disposing of property claimed as evidence, and this discretion extends even to the manner of proceeding in the event the accused claims it was wrongfully taken from him.

8. Property introduced in evidence is in custodia legis, and while it is in custodia legis it is not subject to garnishment or other civil process.

James F. Brogan, County Atty., Madison, for appellant.

Deutsch & Jewell, Norfolk, for appellee.

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

MESSMORE, Justice.

This cause arose in the county court of Madison County. An amended complaint was filed therein on January 24, 1952. The amended complaint charged the defendant, Frank P. Allen, in 15 counts with the unlawful possession on November 7, 1951, of game birds, namely, pheasants, and also with the unlawful transportation of the same on November 7, 1951. To the amended complaint the defendant entered a plea of not guilty. The case proceeded to trial on January 24, 1952. The State introduced evidence and rested; the defendant introduced no evidence. At the conclusion of the State's evidence, the defendant moved for a dismissal of all the counts of the amended complaint. The county court sustained this motion.

On or about May 5, 1952, the defendant filed an application in the county court alleging in substance as follows: (1) That on November 7, 1951, peace officers of the state unlawfully took from the possession of the defendant 15 pheasants and other food items while the same were in transit in the care of a common carrier at the incidence of the defendant; that the pheasants were actually taken and killed in the State of South Dakota; and that the State of Nebraska at no time ever had jurisdiction over the same. (2) That at the trial held January 24, 1952, said peace officers and the State produced the pheasants and other food items, identified them as exhibits, and offered the same into evidence, the result being that the same came into the possession, control, and keeping of the court. (3) That the pheasants were used as evidence upon the trial. (4) That solely because of the unlawful acts of the peace officers of the state the pheasants were taken from the possession of the defendant on November 7, 1951. (5) That the defendant was entitled to the immediate possession of the pheasants and the food items so taken by the peace officers of the state.

To the above application of the defendant the State, by the deputy county attorney of Madison County, filed objections, the material allegations of which are in substance as follows: (1) That under the provisions of sections 37-606, 37-607, and 37-608, R.R.S.1943, all items requested to be returned to the defendant were either contraband or subject to seizure as being part of a contraband shipment, and were contraband because the same were introduced into evidence and each and every one of the pheasants showed visible shot marks. (2) Counts 16 to 30 of the amended complaint dealing with unlawful possession of pheasants were dismissed by the county court on the theory that the court had no jurisdiction over the pheasants because they were taken in South Dakota. (3) That there was no evidence that the same were taken in South Dakota, except for the markings on cartons and tags used in the attempted shipment of the pheasants. (4) That sections 37-213, 37-303, and 37-304, R.R.S.1943, clearly apply to game birds such as pheasants. (5) That the amended complaint was dismissed at the conclusion of the State's evidence, the defendant not introducing evidence to show that the pheasants were lawfully taken in this state or any other state. (6) That the defendant could, by means of an independent proceeding, apply for the possession of the pheasants, the remedy of replevin being available. (7) That the county court erred in dismissing counts 16 to 30 of the amended complaint after all of the 15 pheasants bearing shot marks had been exhibited to the court and the presumption obtained that the pheasants had been unlawfully taken in Nebraska, and the burden to prove otherwise then was on the defendant.

On June 28, 1952, the county court entered an order in substance as follows: (1) That the defendant was entitled to the possession of the pheasants and other food items taken by the peace officers. (2) That at the conclusion of the trial the deputy county attorney, an officer of the court, removed the pheasants and other food items from the physical presence of the court for the sole purpose of placing them in refrigeration to prevent deterioration by reason of which fact it was physically impossible for the court at that time to deliver the pheasants and other food items to the defendant. (3) That it was necessary that the deputy county attorney first return the pheasants and other food items to the physical custody of the court in the county court room in the court house at Madison in as good condition as when removed, as far as humanly possible; that he do so within a reasonable time; and that 20 days constituted a reasonable time, which would be not later than July 18, 1952. It was ordered that, in compliance with this order, the pheasants and other food items be delivered to the defendant.

On July 8, 1952, the State filed a petition in error in the district court. The principal allegations were in substance as follows: That in a proceeding before the county judge of Madison County 15 pheasants were offered in evidence, together with other food items in the case of State v. Allen; and on June 28, 1952, an order was made by the county court to deliver to the defendant the pheasants so taken as above set forth. A transcript of the proceedings of the county court was attached to the petition in error, marked as an exhibit, and made a part thereof. The State set forth that error intervened in the proceedings as appears on the face of the record in the following particulars: (1) That subsequent to the judgment of dismissal, the county judge erroneously ordered the 15 pheasants and other food items, offered in evidence by the plaintiff in error, delivered to the defendant. (2) That said order was erroneous for the reason that the pheasants were contraband within the meaning of sections 37-606, 37-607, and 37-608, R.R.S.1943, and could only be disposed of according to the provisions of section 37-608, R.R.S.1943. (3) That other food items, except the pheasants, were subject to confiscation under section 37-607, R.R.S.1943. (4) That the 15 pheasants here involved were contraband for the reason that each and every one of them bore visible shot marks. (5) That the defendant in such a case has a clear and adequate remedy at law to determine his property rights in the property so taken.

On July 14, 1952, the defendant filed an answer to the State's petition in error in substance as follows: (1) That the plaintiff's petition in error failed to state facts sufficient to justify a modification or reversal of the order of the county court. (2) The petition in error demonstrated on its face that the 15 pheasants and other food items were offered in evidence in the county court and thereby came into possession of the court, and the State had no substantial interest in the disposition of the same. (3) That the pheasants referred to were taken in South Dakota in accordance with the laws of that state, and that the State of Nebraska had no jurisdiction over game taken in a foreign state. (4) That at the trial in the county court the State offered evidence to show that the pheasants were taken in South Dakota. (5) That at the trial of the cause in which such pheasants were offered in evidence, the State of Nebraska proceeded on the theory that the pheasants were the property of the defendant in error, and was estopped to contend otherwise. (6) That after the pheasants were introduced in evidence by the State and after they had thereby come in custodia legis, the same were entrusted to the deputy county attorney of Madison County for safekeeping in a public frozen-food locker plant, and the said deputy county attorney was then an officer of the county court and had no authority to make any other or different disposition thereof. Defendant in error prayed that the plaintiff's petition in error be dismissed.

The plaintiff in error, in a reply, denied generally the allegations of the defendant in error's answer.

On December 4, 1953, the district court for Madison County entered findings and judgment as follows: (1) The order of the county court of June 28, 1952, was affirmed. (2) That the items described in the order were offered...

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9 cases
  • Stewart v. Heineman
    • United States
    • Nebraska Supreme Court
    • April 7, 2017
    ...re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (2016).53 See, State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006) ; State v. Allen, 159 Neb. 314, 66 N.W.2d 830 (1954).54 State v. Allen, supra note 53, 159 Neb. at 321, 66 N.W.2d at 835.55 See Marcotte v. City of Omaha, 196 Neb. 217, 241 N.......
  • State v. Agee
    • United States
    • Nebraska Supreme Court
    • November 9, 2007
    ...No. A-05-1153, 2006 WL 2129117 (Neb.App. Aug. 1, 2006) (not designated for permanent publication). 5. See id. 6. See, State v. Allen, 159 Neb. 314, 66 N.W.2d 830 (1954); State v. Maestas, 11 Neb.App. 262, 647 N.W.2d 122 (2002); Neb.Rev.Stat. §§ 29-818 to 29-820 (Reissue 1995 & Cum. Supp.200......
  • Huff v. Otto
    • United States
    • Nebraska Court of Appeals
    • July 21, 2020
    ...to obtain the return of seized property is to apply to the court for its return. State v. Agee, supra . See, also, State v. Allen , 159 Neb. 314, 66 N.W.2d 830 (1954) (property introduced in evidence is in custodia legis, and while it is in custodia legis, it is not subject to civil process......
  • State v. Cox
    • United States
    • Nebraska Supreme Court
    • March 31, 1995
    ...record of the observations made during the testing of the blood. The reason for § 29-827 is perhaps best illustrated by State v. Allen, 159 Neb. 314, 66 N.W.2d 830 (1954). Therein, the State seized some pheasants as part of its prosecution of Allen for unlawfully possessing and transporting......
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