State v. Losieau, 35231
| Decision Date | 09 November 1962 |
| Docket Number | No. 35231,35231 |
| Citation | 117 N.W.2d 775,174 Neb. 320 |
| Parties | STATE of Nebraska, Appellee, v. Robert William LOSIEAU, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. By the terms of section 29-2221, R.R.S.1943, where punishment of an accused as an habitual criminal is sought, the facts with reference to the charge of habitual criminal must be set out in the indictment or information which charges the criminal offense, but the facts thus set out shall not be an issue on the trial of the criminal offense, that is, during the trial the fact that the defendant is charged as being an habitual criminal shall not be disclosed to the jury.
2. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of such discretion is disclosed.
3. In a criminal case where it is sought to have a verdict of guilty set aside on the ground that the defendant did not have a fair trial on account of prejudice, the trial court has a large discretion in ruling on the question of prejudice.
Wm. G. Line, Fremont, for appellant.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is a criminal action wherein in the district court for Dodge County, Nebraska, Robert William Losieau, defendant, appellant here, was, in an information filed by the county attorney in the name of the State of Nebraska as plaintiff, appellee here, charged with the offense of breaking and entering, and further that he was an habitual criminal. The defendant was tried to a jury and convicted of the offense charged. On a later hearing in the action to the court he was found to be an habitual criminal and was sentenced to serve a term of 20 years in the State Penitentiary at Lincoln, Nebraska.
The defendant filed a motion for new trial which was overruled. From the order overruling this motion and from the judgment sentencing him the defendant has appealed.
As grounds for reversal of the judgment the defendant's brief contains eight assignments of error. Only one of these requires separate consideration. The other seven deal with a single subject matter and therefore do not require separate consideration.
The one requiring separate consideration is the seventh. By this one it is contended that the verdict is not sustained by sufficient evidence. It must be regarded as having no merit. The brief of the defendant in the following words substantially so declares:
By the other seven assignments of error it is urged that the defendant was tried in an atmosphere wherein the danger of the jury being improperly influenced in its determination of guilt or innocence prevented it from being said that the defendant was accorded a fair trial. Specifications urged are that in consequence of this the court erred in failing to grant a change of venue; it erred in failing to quash the jury panel; it erred in failing to grant a mistrial; it erred in failing to dismiss the action; and it erred in failing to grant a new trial.
There is no showing made the effect of which was to say, or from which a reasonable inference could be drawn, that the jury was improperly influenced, but only that it could have been. The defendant does not contend otherwise.
One theory of the presentation of the defendant is that if a jury or its members had knowledge or came into possession of knowledge during or before a trial that a defendant on trial for a criminal offense and as an habitual criminal, the knowledge or possibility of acquisition of knowledge that he was charged with being an habitual criminal would render a verdict of guilty invalid, no matter whether that information was disclosed by the proceedings on the trial or from some other source or, as applied to this case, through publications contained in newspapers. The defendant relies for support upon the following from section 29-2221, R.R.S.1943: 'Where punishment of an accused as an habitual criminal is sought, the facts with reference thereto must be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being an habitual criminal shall not be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury.'
The reliance of the defendant is in particular on the...
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Losieau v. Sigler
...115, 58 N.W.2d 824 (1953). Direct appeal. The Supreme Court of Nebraska affirmed the conviction. 1962 Conviction: State v. Losieau, 174 Neb. 320, 117 N.W.2d 775 (1962), cert. denied sub nom. Losieau v. Nebraska, 374 U.S. 814, 83 S.Ct. 1707, 10 L.Ed.2d 1037 (1963). Direct appeal. The Supreme......
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State v. Goham, 37744
...of any nature is made herein as to any bias or improper conduct on the part of the jury or any individual juror. In State v. Losieau, 174 Neb. 320, 117 N.W.2d 775, we said: 'A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ru......
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