State v. Lehman, 42209

• Decision Date: 08 May 1979
• Docket Number: No. 42209,42209
• Citation: 203 Neb. 341,278 N.W.2d 610
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. James K. LEHMAN, Appellant.

Page 610

278 N.W.2d 610

203 Neb. 341

STATE of Nebraska, Appellee, v. James K. LEHMAN, Appellant.

No. 42209.

Supreme Court of Nebraska.

May 8, 1979.

Syllabus by the Court

1. Supreme Court: Appeal and Error. Except where jurisdiction is involved, this court will consider on appeal only questions which have been presented to and passed upon by the trial court.

2. Criminal Law: Constitutional Law: Indictments and Informations. A preliminary investigation conducted by the prosecuting attorney and upon which he files a sworn complaint or information against the party accused, is a sufficient compliance with the requirement of the Fourth Amendment of the United States Constitution that no warrant shall issue but upon probable cause, supported by oath or affirmation.

3. Criminal Law: Hearings: Pleas: Evidence: Juries. The sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceedings in the District Court, and after trial and conviction any error in the ruling of the District Court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt.

4. Indictments and Informations: Witnesses: Time. A trial court may, in the exercise of its discretion, permit the names of witnesses to be endorsed upon an information before or after the trial has begun when there is no showing of prejudice.

5. Criminal Law: Constitutional Law: Indictments and Informations. The provision of the Constitution of the State of Nebraska permitting prosecutions for felonies by information, rather than by grand jury indictment, does not conflict with the Fifth and Fourteenth Amendments of the United States Constitution.

6. Criminal Law: Statutes: Jurisdiction. In order to suspend jurisdiction of a state court in a criminal proceeding it is necessary to file a petition for removal in the appropriate United States District Court, to give notice to the adverse parties, and to file a copy of such petition with the clerk of the state court, all as provided by 28 U.S.C.A., s. 1446. Once this is accomplished the state court shall proceed no further unless and until the case is remanded.

7. Courts: Jurisdiction: Appeal and Error. Once the state court is notified of an order of remand by the federal court, it resumes jurisdiction and may proceed even in the face of an appeal of the remand order, unless the defendant obtains a stay of proceedings.

James K. Lehman, pro se.

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

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

HASTINGS, Justice.

Defendant was charged in an information alleging that he 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." He was tried by a jury, convicted, and "sentenced to serve a term of 30 days in the Nebraska State Penitentiary located near Lincoln, Nebraska, and pay a fine of $500.00 and costs of this action."

It should be noted at the outset that defendant proceeded pro se both in the trial court and on appeal. This in spite of the fact that at every point in the proceedings, the trial court diligently, earnestly, and painstakingly pointed out his right to counsel and willingness to appoint counsel at public expense if defendant could not afford his own attorney. Defendant refused these offers but insisted that he have the assistance of what he called "counsel of trust," laymen who were self-styled experts. This request was denied by the trial judge, but, in a remarkable display of patience and fairness, he permitted defendant to have a nonlawyer sit next to him during the trial to counsel with defendant but who could not participate in the conduct of the trial. At this point, it would be appropriate to mention that at all stages of the trial, with few minor exceptions, the defendant refused to participate in the trial proceedings although he was present and, apparently without disturbance, objected to the jurisdiction and authority of the court over the subject matter and of his person.

Defendant's assignments of error, allowing him some measure of literary license and applying liberal standards of interpretation, are that the arrest warrant was issued without oath, affirmation, or probable cause; that the preliminary hearing held preceding the filing of the information failed to establish probable cause; that the information was served without the names of witnesses being endorsed thereon; that the trial judge violated Article V, section 14, Constitution of Nebraska, which prohibits a judge from practicing law, when he instructed the county attorney to endorse the names of the witnesses on the amended information; that defendant was entitled to a grand jury indictment; and that the trial court was without jurisdiction to commence the trial on May 1, 1978, because the case had been removed to federal court.

At the outset, the State reminds us that this court ordinarily will not consider any error not presented to the trial court by a motion for a new trial. This is a correct statement of the law as set forth in State v. Price, 198 Neb. 229, 252 N.W.2d 165 (1977). "However, while this court may have jurisdiction, it will ordinarily not consider any error not presented to the trial court by a motion for a new trial if the trial court would have authority to correct the error assigned." However, all of defendant's complaints go to jurisdiction, which we will always consider even though it may not have been presented to and passed upon by the trial court. "This court has often held that: 'Except where jurisdiction is involved, this court will consider on appeal only questions which have been presented to and passed upon by the trial court.' " (Emphasis supplied.) Sleezer v. Lang, 170 Neb. 239, 102 N.W.2d 435 (1960).

Most of the assignments of error border on the frivolous, but will be dealt with as precisely as possible. Defendant claims that the arrest warrant was issued without oath, affirmation, or probable cause. The Fourth Amendment of the Constitution does provide that: "The right of the people to be secure in their persons * * * against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon Probable cause, supported by Oath or affirmation, and particularly describing * * * the persons * * * to be seized." (Emphasis supplied.) A similar contention was made in Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), and was answered by the court as follows: "Consequently, a preliminary investigation conducted by the prosecuting attorney of the City of Manila, under Act No. 612, and upon which he files a sworn information against the party accused, is a sufficient compliance with the requirement 'that no warrant shall issue but upon probable cause, supported by oath or affirmation.' " The complaint filed with the county attorney contained an allegation by the deputy county attorney that defendant had violated a particular specified statute and the complaint was accompanied by an affidavit under oath, made by the same official, that he had been informed by a particular official of the Nebraska Department of Revenue that defendant had committed certain acts which, it is obvious, constituted the crime charged. Such an affidavit furnishes probable cause and under the provisions of section 29-404, R.R.S.1943, the magistrate was required to issue the warrant.

There is no transcript in the record of the evidence given at the preliminary hearing. Therefore, the order of the county judge finding probable cause and binding over the defendant to District Court will be presumed valid. In any event, the fact that defendant was found guilty by a jury on sufficient evidence settled the issue of probable cause. "We reiterate our previously established rule that the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the District Court. We further hold that after trial and conviction in the District Court any error in the ruling of the District Court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt." State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975).

Whatever failure there was to endorse the names of witnesses on the information was rectified by the later endorsement with leave of the court at least 3 weeks before the beginning of the trial. In addition, through pretrial discovery and conference, defendant knew well in advance of the trial not only the names of the witnesses, but had in his possession a summary of their testimony as required by the trial judge. "A trial court may, in the exercise of its discretion, permit the names of witnesses to be endorsed upon an information before or after the trial has begun when...