State v. Hutter
| Decision Date | 03 November 1944 |
| Docket Number | 31878. |
| Citation | 16 N.W.2d 176,145 Neb. 312 |
| Parties | STATE v. HUTTER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In proceedings under sections 29-2314, 29-2315 and 29-2316 Comp.St.1929, this court will not decide questions therein presented until a final order has been entered in the court below completely disposing of the action, unless it is clearly shown by the record that the decision can in no manner reverse or affect the case in which the exceptions are taken.
Walter R. Johnson, Atty. Gen., Rush C. Clarke, Asst. Atty. Gen., H Emerson Kokjer, Deputy Atty. Gen., and Kelso Morgan, Co. Atty., and C. E. Walsh, Deputy Co. Atty., both of Omaha, for plaintiff in error.
Eugene D. O'Sullivan, of Omaha, for defendant in error.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
By permission of this court, pursuant to sections 29-2314, 29-2315 and 29-2316, Comp.St.1929, the state of Nebraska, by its attorney general and the county attorney of Douglas county, filed a bill of exceptions in the above entitled cause in this court to obtain a decision upon questions therein presented.
The proceedings, out of which these exceptions arise, were originally instituted in the county court of Douglas county.
On December 6, 1943, a complaint was filed in the county court charging the defendant, Charles Hutter, with murder in the second degree arising out of the death of Grant Fallon on December 5, 1943. Preliminary hearing was had and on December 17 1943, defendant was bound over to the district court. Information was then filed in the district court on December 20, 1943, charging the same offense.
On March 3, 1944, complaint was filed in the county court charging the defendant with murder in the first degree for the death of Grant Fallon on December 5, 1943. Preliminary hearing was had and he was bound over to the district court on March 18, 1944. Information was then filed in the district court on March 24, 1944, charging the same offense.
At the time the defendant was tried in the district court on the information charging murder in the first degree, and after a jury had been impaneled and the state had offered its evidence, the defendant made a motion 'to either dismiss this action or reduce the charge stated in the Information,' for the reasons set forth in the motion. Ruling thereon was reserved until all of the testimony had been submitted. At the conclusion of all the testimony the motion was renewed and the court sustained the motion to dismiss as to murder in the first and second degree but submitted manslaughter. At the same time an order was entered dismissing the information of murder in the second degree. See Comp.St.1929, sec. 29-1801.
After the jury had been out 21 1/2 hours and were unable to agree on a verdict, with the consent of both the state and defendant, the jury were discharged and cause continued for further proceeding.
On July 11, 1944, the defendant filed a plea in bar as to murder in the first and second degree and manslaughter based on the proposition that in the previous trial he had been lawfully acquitted thereof and setting forth his reasons therefor. The state filed its answer thereto and hearing was had thereon. On July 12, 1944, the defendant's plea in bar as to first and second degree murder was sustained but the same plea as to manslaughter was overruled and the defendant was ordered to be tried on the charge of manslaughter.
The state then made a motion for continuance which was sustained and the matter of defendant's trial continued to October 16, 1944. In its motion for continuance the state sets forth the reasons therefor. They are in part as follows:
'2. That the State is very seriously and earnestly of the opinion and respectfully suggests to the Court the possibility that the Court erred in sustaining the Plea in Bar heretofore mentioned, and desires, if possible, to bring proceedings in the Supreme Court of Nebraska either by exceptions in the manner provided by law or by error proceedings or by appeal if it be determined that the order of this Court entered upon the Plea in Bar is a final order subject to review, and to secure the judgment and opinion of the Supreme Court upon the...
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