State v. Deberry, 39232

• Citation: 215 N.W.2d 73,191 Neb. 445
• Decision Date: 07 March 1974
• Docket Number: No. 39232,39232
• Parties: STATE of Nebraska, Appellee, v. Earl E. DeBERRY, Appellant.
• Court: Supreme Court of Nebraska

Page 73

215 N.W.2d 73

191 Neb. 445

STATE of Nebraska, Appellee, v. Earl E. DeBERRY, Appellant.

No. 39232.

Supreme Court of Nebraska.

March 7, 1974.

Syllabus by the Court

In the absence of a proper bill of exceptions, any assignment of error that requires an examination of evidence cannot prevail on appeal.

Appeal from District Court, Douglas County; Caniglia, Judge.

Earl E. DeBerry, pro se.

Clarence A.H. Meyer, Atty.Gen., Harold S. Salter, Deputy Atty.Gen., Lincoln, for appellee.

Heard before WHITE C.J., BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and COLWELL and WARREN, District Judges.

WHITE, Chief Justice.

In this post conviction action the defendant alleges by way of conclusions that he was denied "right to representation by competent counsel. *** The unconstitutional suppression of evidence by the state. *** The use by the state of testimony known to it to be perjured." While there are allegations of fact to support these statements of conclusions in the pleadings and, although the record shows that a hearing was held, there is no bill of exceptions in this post conviction case. The pleadings do not afford a basis for granting relief and there is no evidence before the court by which any factual issue could be reviewed. In the absence of a proper bill of exceptions, any assignment of error requiring an examination of evidence cannot prevail on appeal.

The judgment of the District Court is correct and is affirmed.

Affirmed.