State v. Longmore, 35856

Citation178 Neb. 509,134 N.W.2d 66
Decision Date26 March 1965
Docket NumberNo. 35856,35856
PartiesSTATE of Nebraska, Appellee, v. Robert E. LONGMORE, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. An order overruling a motion for a new trial and placing the defendant on probation is a final appealable order under section 25-1912, R.S.Supp., 1963.

2. Neither a request for, nor an acceptance of, an order of probation is, in itself, a voluntary waiver of the right of appeal.

3. A defendant must appeal from the order within the statutory time. He may not take the benefit of his probation and hold off on his appeal.

4. In a criminal trial a confession of guilt alleged to have been made by the defendant is not competent in evidence, unless first shown to have been voluntarily made.

5. The court must first determine on evidence taken out of the presence of the jury, if there is objection to taking it in the presence of the jury, whether or not it has been sufficiently shown that the confession was voluntarily made. The question to be determined by the court is that of whether or not the affirmative evidence shows that the confession was voluntarily made and that this evidence excludes any other hypothesis.

6. Counsel for the defendant, before the confession is admitted, has a right to cross-examination the witnesses who propose to testify to it as to the circumstances surrounding the making of it, and may also call at the same time independent witnesses and examine them, going thoroughly into the whole matter as to how the confession came to be made, the parties present, and the physical condition and state of mind of the prisoner at the time it was made; and then the court, with all these facts before it, is to pass upon its admission.

7. The admission of the confession in evidence constitutes the court's independent determination that the confession is voluntary.

8. The extent to which defendant's right to consult counsel, during the period prior to and during the interrogation, was delayed or denied is clearly proper to be shown.

9. The question of whether or not in the first instance the State has laid proper and sufficient foundation for the admission of a confession is one of law for the court. If the court determines as a matter of law that no sufficient foundation has been laid, then the confession should be rejected, but where the confession is received in evidence, its voluntary character is still a question of fact for the jury.

10. The use of any confession obtained in violation of the due process clause requires reversal of the conviction even though unchallenged evidence adequate to convict remains.

11. A defendant formally indicted and charged with a homicide is entitled to the right of effective counsel at every step of the proceedings.

12. A secret interrogation of a defendant charged with a felony, when the accused has asked for and been denied the presence of his counsel, is a violation of his constitutional rights.

13. A confession obtained in violation of the defendant's constitutional rights is involuntary and inadmissible in evidence.

Frank J. Kneifl, E. J. McCarthy, South Sioux, City, for appellant.

Clarence A. H. Meyer, Atty. Gen., Homer G. Hamilton, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

McCOWN, Justice.

This is a criminal action in which Robert E. Longmore was charged with second degree murder and found guilty of manslaughter by verdict of the jury. Thereafter the district court entered an order which overruled the motion for a new trial and in the same order placed Longmore on probation for 2 years under conditions. Appeal was promptly taken.

The State filed a motion to dismiss the appeal upon the ground that no final order of judgment has been entered, there being no sentence; and that Longmore had accepted the terms and conditions of his probation and, therefore, had waived his right of appeal.

The issues raised in the motion to dismiss have not been passed upon before by this court and necessitate a decision upon the motion before considering the case on the merits.

Article I, Section 23, of the Nebraska Constitution, provides in part that: 'The writ of error shall be a writ of right in all cases of felony; * * *.' In 1961, the Legislature, in effect, abolished the writ of error, and provided that appeals under the criminal code be the same as in civil cases. Section 25-1912, R.S.Supp., 1963.

The development of the law on the issues involved here can be seen from a thorough examination of the cases; but differences in statutes, constitutions, and factual situations have led to many different results. The authorities reflect the divergent attitudes of the various courts which have passed upon the issues. See, 4 Am.Jur.2d, Appeal and Error, §§ 161, 270, 274, pp. 674, 764, 767, and supplements; 24 C.J.S. Criminal Law §§ 1649, 1668, pp. 1004, 1047, and supplements; Annotations, 126 A.L.R. 1210, 117 A.L.R. 929.

The State points out that we have held many times that a judgment or final order must include a sentence. None of the cases cited involved a probation order. Apparently the last such pronouncement was in Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853, and it also held that error proceedings may be taken from the overruling of the motion for new trial, or the imposition of sentence, whichever is the later.

Historically the courts generally held that imposition of a sentence was required for finality; and that acceptance of probation waived the defendant's right to appeal.

The federal rule has developed from that point. See, Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (relied upon by the State here); Birnbaum v. United States, 4 Cir., 107 F.2d 885; Nix v. United States, 5 Cir., 131 F.2d 857. The present federal rule, however, has been in effect since 1943.

Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 84 L.Ed. 1497, established this rule. In that case, the court said: 'In the Berman case, supra, we held that the appeal was proper where the sentence was imposed and suspended, and the defendant was placed on probation. The probationary surveillance is the same whether or not sentence is imposed.' The court further said: '* * * a probation order is 'an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline.' Cooper v. United States, 5 Cir., 91 F.2d 195, 199.

'The difference to the probationer between imposition of sentence followed by probation, as in the Berman case, and suspension of the imposition of sentence, as in the instant case, is one of trifling degree. Probation, like parole, 'is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency', Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S.Ct. 872, 874, 82 L.Ed. 1399, 116 A.L.R. 808, and this end is served in the same fashion whether or not probation is preceded by imposition of sentence. In either case, the liberty of an individual judicially determined to have committed an offense is abridged in the public interest. 'In criminal cases, as well as civil, the judgment is final for the purpose of appeal 'when it terminates the litigation * * * on the merits' and 'leaves nothing to be done but to enforce by execution what has been determined.'' Berman v. United States, supra, 302 U.S. 212, 213, 58 S.Ct. 166, 82 L.Ed. 204.'

Many, if not most, of the cases on the issue of waiver of the right of appeal by acceptance of probation, involve cases where the defendant accepted probation, and later attempted to appeal when the probation was terminated and sentence imposed. One of the leading cases on the issue for many years was the case of Brooks v. State, 51 Ariz. 544, 78 P.2d 498, 117 A.L.R. 925. It has been cited as an authority for the historical rule on many occasions. The defendant there was given a suspended sentence and probation and almost two years later violated the conditions of his probation and sentence was thereupon entered. The court held that by accepting the benefits of the probation he had waived his right of appeal. In 1962 the Arizona court overruled the Brooks case in State v. Heron, 92 Ariz. 114, 374 P.2d 871. The court stated: 'The policy expressed by the cases holding the sentence is the judgment seems to be that the defendant should be grateful he is not behind bars. He cannot appeal from his cinviction because he is better off than he might be. If he wants to test his conviction he must give up his freedom and appeal from his cell. * * *

'One who is placed on probation is subject to an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline. In either case the defendant is worse off than he would be had he not been convicted.'

For cases related in result or reasoning, but on other grounds or issues, see, State v. Carroll (N.D.), 123 N.W.2d 659; Rash v. State, 168 Tex.Cr.R. 33, 323 S.W.2d 53. State v. Miller, 225 N.C. 213, 34 S.E.2d 143; State v. Carpenter, 67 Idaho 277, 176 P.2d 919.

Our statutes make it mandatory that the district court '* * * ascertain, if practicable, through the agency of a probation officer or otherwise, the age of the accused, whether the offense of which he is found guilty by such verdict is his first offense, the extent of the moral turpitude involved in the act committed by the accused, and such other facts and circumstances relating to the accused as he may desire to know.' Section 29-2217, R.R.S.1943. 'In case such judge, considering the age of the accused, his former course of life, disposition, habits, and inclinations, or any other obtainable information, should be of the opinion that the accused would refrain from engaging in or committing further criminal acts in the future, the court may, in its discretion, enter an order, without pronouncing sentence,...

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