State v. Etchison, 38903

• Decision Date: 19 October 1973
• Docket Number: No. 38903,38903
• Citation: 190 Neb. 629,211 N.W.2d 405
• Parties: STATE of Nebraska, Appellee, v. Hubert R. ETCHISON, Appellant.
• Court: Nebraska Supreme Court

Page 405

211 N.W.2d 405

190 Neb. 629

STATE of Nebraska, Appellee, v. Hubert R. ETCHISON, Appellant.

No. 38903.

Supreme Court of Nebraska.

Oct. 19, 1973.

Syllabus by the Court

1. Defects which might have been attacked by motion to quash or plea in abatement are waived when defendant pleads to the general issue or when such a plea is entered for him by the court.

2. Section 60--430.07, R.R.S.1943, is not vague, indefinite, or uncertain.

3. The fixing of criminal penalties is primarily a legislative function and courts will not interfere except in those cases where the punishment is so excessive as to shock the sense of mankind.

Riedmann, Welsh & Jeffries, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

SPENCER, Justice.

Defendant, Hubert R. Etchison, was found guilty of fleeing in a motor vehicle in an effort to avoid arrest, and was sentenced to 18 months imprisonment in the Nebraska Penal and Correctional Complex. We affirm.

The information filed against defendant on April 5, 1972, contained two counts: Count I charged operation of a motor vehicle while under the influence of alcoholic liquor; and count II charged the offense upon which defendant was convicted and sentenced herein by the District Court for Sarpy County.

Defendant was arrested on December 13, 1971, and charged in county court with drunken driving and motor vehicle flight to avoid arrest. He was found guilty on the first count, sentenced to 30 days in jail, and bound over to the District Court on the second count. Defendant failed to perfect an appeal from his conviction for driving while intoxicated. When he appeared for trial in the District Court on October 4, 1972, the judge struck count I of the information upon which defendant had already been tried and convicted, and remanded him to the custody of the sheriff to carry out the sentence imposed by the county judge. Defendant waived his right to a jury trial on the remaining count and was tried by the court on October 19 and 20, 1972.

The evidence would indicate that defendant's automobile was observed by the occupants of a Sarpy county sheriff's patrol car heading west on State Highway No. 370 at a high rate of speed. They pursued and stopped it and informed defendant that he was under arrest for drunken driving. Defendant then pulled away from the scene and a chase ensued through the Golden Hills area of Sarpy county, then easterly on highway No. 370, and finally where, with the assistance of two Bellevue police cruisers, defendant was stopped.

Defendant makes three assignments of error: First, the court erred in failing to quash the information for the reason that it did not state facts sufficient to constitute it did not state facts sufficient to constitute an offense; second, the court erred in overruling defendant's motion to dismiss, for the reason that section 60--430.07, R.R.S.1943, is unconstitutional; and, third, the court erred in overruling defendant's motion for a new trial. From defendant's brief his third assignment of error is predicated on the first two, so those are the ones we consider.

Under section 29--1812, R.R.S.1943, a defendant who pleads to the general issue sue waives all defects which might have been attacked by a motion to quash. This statute has long been interpreted to include the situation where a plea is entered for the defendant by the court. Trimble v. State (1901), 61 Neb. 604, 85 N.W. 844; Huette v. State (1910), 87 Neb. 798, 128 N.W. 519. The applicable rule is that defects which might have been attacked by motion to quash or plea in abatement are waived when defendant pleads to the general issue, or when such a plea is entered for him by the court. Trimble v. State, Supra; Huette v. State, Supra.

Although the information was filed herein on April 5, 1972, trial did not commence until October 19, 1972. Defendant was represented by counsel during this period. A plea of not guilty was entered on behalf of the defendant by the court on September 8, 1972. Defendant's motion to quash was not made until October 19, 1972, the first day of the trial, and it was denied by the court on that date. The motion to quash was filed without leave of court while the plea of not guilty was upon the record. Defendant at no time requested leave of the court to withdraw the plea to the general issue. Under such circumstances, the motion to quash was properly denied. Even if defendant had timely filed his motion there would remain serious questions concerning whether it sufficiently raises the particular objections argued in the brief. These are points we need not decide.

Defendant, in his second assignment of error, contends that section 60--430.07, R.R.S.1943, is so vague, indefinite, and uncertain as to be unconstitutional. This statute was adopted when we declared its predecessor, section 60--430.02, R.R.Supp., 1965, unconstitutional. The present statute eliminates the language objected to in Heywood v. Brainard (1967), 181 Neb. 294, 147 N.W.2d 772. It is obvious from reading Heywood that we had no question as to the constitutionality of the language now objected to by the defendant: 'It shall be unlawful for any person operating any motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this state.' This is the only part of the statute defining the offense. The subsequent language deals solely with the statute's penal provisions. The statute in its present form is not vague, indefinite, or uncertain. It clearly specifies the elements of the offense. No one should be misled by it. To be guilty the accused must be fleeing in a motor vehicle in an effort to avoid...