State v. Forbes, s. 42210

• Decision Date: 08 May 1979
• Docket Number: 42211,Nos. 42210,s. 42210
• Citation: 278 N.W.2d 615,203 Neb. 349
• Parties: STATE of Nebraska, Appellee, v. Raymond FORBES, Appellant. STATE of Nebraska, Appellee, v. Neva FORBES, Appellant.
• Court: Nebraska Supreme Court

Page 615

278 N.W.2d 615

203 Neb. 349

STATE of Nebraska, Appellee, v. Raymond FORBES, Appellant.

STATE of Nebraska, Appellee, v. Neva FORBES, Appellant.

Nos. 42210, 42211.

Supreme Court of Nebraska.

May 8, 1979.

Syllabus by the Court

1. Criminal Law: Pleas: Arraignments. A claim that a defendant was not accorded a preliminary hearing, nor waived it, is determinable by a plea in abatement.

2. Criminal Law: Indictments and Informations: Arraignments. District Courts are without jurisdiction to try on information one accused of committing a felony within the state unless the defendant is first accorded the privilege of a preliminary examination or waives the same.

3. Criminal Law: Indictments and Informations: Arraignments: Lesser-Included Offenses. If a defendant is accorded a preliminary hearing and thereafter an amended information is filed charging a crime that includes some of the elements of the original crime charged without the addition of any element irrelevant to that original charge, no new preliminary hearing is required.

4. Criminal Law: Indictments and Informations: Taxes: Intent. A complaint that accused willfully attempted to evade an income tax or the payment thereof without specifying the means employed to attempt such evasion, does not include on its face the crime of filing a false return.

5. Criminal Law: Indictments and Informations: Evidence: Arraignments: Lesser-Included Offense. Without a certified copy of the transcript of the evidence introduced at the preliminary hearing, and in the absence of a stipulation, no determination can be made in District Court that probable cause is established by an amended information, which on its face does not appear to be a lesser-included offense.

Raymond and Neva Forbes, pro se.

Paul L. Douglas, Atty. Gen., and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

The defendants are husband and wife, and were charged in separate informations after preliminary hearings that each did "willfully attempt to evade an income tax imposed by the provisions of Secs. 77-27,101 to 77-27,135, R.R.S., (1943) or the payment thereof." Later on, amended informations were filed, charging that each did: "Count 1. wilfully make and subscribe an (sic) State Income Tax return, which contains or is verified by a written declaration that is made under penalties of perjury, which the defendant did not believe to be true and correct as to every material matter, for the taxable year ending December 31, 1974, Count 2. The defendant, being a person required under the provisions of Sec. 77-2701 to 77-27,135 R.R.S.1943 as amended, to make a state income tax return, did unlawfully and willfully fail to make a valid return for the year 1974 pursuant to the provisions of said statutes of Nebraska." Their cases were consolidated for trial to a jury and each was convicted and sentenced to a term of 15 days imprisonment in the "Nebraska State Penitentiary near Lincoln, Nebraska" as to Raymond Forbes and in the "Women's State Reformatory at York, Nebraska" as to Neva Forbes on count 1, a felony; and each was ordered to pay a fine of $250 and costs of suit on count 2, a misdemeanor. Although separately docketed on appeal, the two cases, together with State v. Lehman, 203 Neb. 341, 278 N.W.2d 610, were argued together.

With one exception, all of the issues here are identical with those in State v. Lehman, supra, and are disposed of by our decision in that case. With that one exception, all of the procedural facts are identical. The exception, as undoubtedly is apparent from a reading of the statement of the preliminary facts above, is that in the present cases, after the bind overs to District Court on the original information, leave was given the State to file the amended informations as stated above.

Upon being arraigned on the amended informations, the defendants refused to plead, objecting to the jurisdiction of the court generally, and pleas of not guilty were entered for them by the trial court. Thereafter, and before trial, defendants filed a "Demand for Dismissal," which was essentially a plea in abatement in that it objected to the jurisdiction of the court because of the failure to provide a preliminary hearing after the filing of the amended informations. "It is fundamental that a claim that a defendant was not accorded a preliminary hearing, nor waived it, is determinable by plea in abatement." State v. Moss, 182 Neb. 502, 155 N.W.2d 435 (1968). It is likewise true that the District Court is without jurisdiction to try on information one accused of committing a felony within the state unless the defendant is first accorded the privilege of a preliminary examination or waives the same. Latimer v. State, 55 Neb. 609, 76 N.W. 207 (1898). "No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, unless such person shall waive his right to such examination; except as otherwise provided in the Uniform Criminal Extradition Act." § 29-1607, R.R.S.1943.

The State contends the amended informations merely charged lesser-included offenses of the crimes charged in the original informations, upon which preliminary hearings were held. "The District Court, before trial, may in its discretion permit amendment of a criminal information, provided the amendment does not change the nature or identity of the offense charged, and the amended information does not charge a crime other than the one on which the accused has his preliminary hearing." State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977). It is true that if a defendant is accorded a preliminary hearing and...