State v. McGee

• Decision Date: 27 December 1985
• Docket Number: No. 85-273,85-273
• Parties: STATE of Nebraska, Appellee, v. Nathan J. McGEE, Appellant.
• Court: Nebraska Supreme Court

Page 674

378 N.W.2d 674

221 Neb. 557

STATE of Nebraska, Appellee, v. Nathan J. McGEE, Appellant.

No. 85-273.

Supreme Court of Nebraska.

Dec. 27, 1985.

Syllabus by the Court

1. Indictments and Informations. Where an indictment or information sets forth the crime in the language of the statute or the equivalent thereof, it is sufficient.

2. Indictments and Informations: Double Jeopardy. For an information to be sufficient it must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense.

3. Indictments and Informations: Double Jeopardy. An indictment or information alone need not be full protection against double jeopardy, because a defendant may allege and prove facts outside the record in support of a plea of former adjudication.

John S. Mingus of Mingus & Mingus, Ravenna, for appellant.

Robert M. Spire, Atty. Gen., and Timothy E. Divis, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

KRIVOSHA, Chief Justice.

Nathan J. McGee appeals from a judgment entered by the district court for Buffalo County, Nebraska, finding McGee guilty of criminal nonsupport in violation of Neb.Rev.Stat. § 28-706(1) (Reissue 1979). We affirm.

The marriage between McGee and his former wife was dissolved by decree entered on March 17, 1978. In that decree McGee was ordered to support the minor child of the parties, Angela K. McGee, born March 8, 1977. By the decree the child support was set in the amount of $75 per month. The record further discloses that the last payment made by McGee was in late 1979. The information was filed on March 6, 1984, charging McGee with criminal nonsupport. On June 20, 1984, a felony arrest warrant was issued for McGee on the criminal nonsupport charges and various other offenses not relevant to this appeal. McGee was arrested in Kansas sometime after June 20, 1984. On September 12, 1984, McGee appeared pro se at an arraignment in the county court for Buffalo County, Nebraska. He requested and was assigned a court-appointed attorney and also requested and was granted a preliminary hearing. On October 24, 1984, McGee, together with his counsel, appeared in the county court for Buffalo County, waived his right to a preliminary hearing, and was bound over to the district court for Buffalo County. On February 6, 1985, McGee, together with his court-appointed counsel, appeared in the district court for Buffalo County, Nebraska, where the record reflects he freely, voluntarily, and knowingly entered a plea of guilty to the charge of criminal nonsupport. The record further indicates that at the time of his plea McGee was between $6,000 and $7,000 in arrears in his child support. Following the preparation of a presentence investigation, McGee was sentenced to 5 years' probation. Included in the terms of the probation were requirements that McGee serve 30 days in the county jail of Buffalo County and that he pay child support of $150 per month commencing May 1, 1985, and on the first day of each and every month thereafter until the past due child support had been paid.

McGee now appeals to this court, maintaining that (1) no proper information was filed upon which a conviction by plea or otherwise could be sustained and (2) McGee was denied his constitutional rights under Neb.Const. art. I, §§ 2, 3, 11, and 12, and U.S.Const. amend. XIV.

Turning to the first assignment of error, that no proper information was filed, we believe that the assignment is wholly without merit. The information filed against McGee in the district court for Buffalo County, Nebraska, charged that

Nathan McGee ... from October 26, 1979 to March 6, 1984 Feloniously, did then and there intentionally fail, refuse, or neglect to provide proper support which he knew or reasonably should have known he was legally obliged to provide, to his minor child. Said support having been ordered by the Buffalo County District Court, Nebraska, in a decree dated March 17, 1978, in the District Court of Buffalo County.

(Emphasis supplied.)

Section 28-706(1) provides in part as follows: "Any person who intentionally fails refuses, or neglects to provide proper support which he knows or reasonably should know he is legally obliged to provide to a ... minor child ... commits criminal nonsupport."

While McGee's argument as to the defect in the information is somewhat obscure, it is apparently his position that by having failed to include the name of the minor child in the information, the information is somehow defective.

We believe McGee is in error. We have repeatedly held that where an indictment or information sets forth the crime in the language of the statute or the equivalent thereof, it is sufficient. See Buckley v. State, 131 Neb. 752, 269 N.W. 892 (1936). See, also, State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984); State v. Turner, 218 Neb. 125, 354 N.W.2d 617 (1984). There cannot be any serious argument made here that the information did not charge McGee substantially in the language of the statute.

Additionally, we have held that for an information to be sufficient it must "inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense." State v. Dreifurst, 204 Neb. 378, 381, 282 N.W.2d 51, 53 (1979). No serious argument can be made that the complaint here failed to sufficiently advise McGee of the charge made against him or to render a conviction a bar to any later prosecution for the same offense.

To begin with, the information specifically charged him with failing to support his "minor child." No contention is made that there is more than one child. Therefore, to suggest that by having failed to name the single child the complaint is defective is wholly without merit. Had McGee been unhappy or dissatisfied with the specific language of the information, he was obligated to seek a more specific statement. See, Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959); State v. Bargen, 219 Neb. 416, 363 N.W.2d 393 (1985). We noted in State v. Abraham, 189 Neb. 728, 730, 205 N.W.2d 342, 344 (1973):

[I]f the information ... was not sufficiently...