State v. Ninneman, 36106
| Decision Date | 11 February 1966 |
| Docket Number | No. 36106,36106 |
| Citation | 140 N.W.2d 5,179 Neb. 729 |
| Parties | STATE of Nebraska, Appellee, v. Virgil NINNEMAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Proof of prior convictions under section 39-727, R.S.Supp., 1963, is properly made by offering in evidence the complaint or information in the judgment rendered on the verdict or the plea of guilty, evidence that the judgment has become final, and that the defendant is the same person presently before the court.
2. A plea of guilty to a complaint waives any objection to it which could have been asserted by a motion to quash or a plea in abatement.
3. Defendant in any criminal prosecution must be given a reasonable opportunity to employ and consult with counsel.
4. The mere fact that testimony is uncontradicted does not mean that it must be accepted as true on the hearing. Credibility is for the triers of the facts.
5. A plea of guilty by defendant does not necessarily waive his constitutional right to counsel.
6. Any constitutional right or guarantee may be waived although the waiver must be an intelligent relinquishment or abandonment of a known right or privilege.
7. It is not the province of this court in a criminal case to pass on the credibility of witnesses or weigh the evidence unless it is lacking in probative force as a matter of law.
John McArthur, Lincoln, for appellant.
Clarence A. H. Meyer, Atty. Gen., H. G. Hamilton, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
Virgil Ninneman, hereinafter referred to as appellant, was found guilty after a jury trial of driving his automobile while under the influence of alcoholic liquor, which for convenience hereinafter will be referred to as drunk driving. Subsequently the court determined that appellant was guilty of drunk driving, second offense, and sentenced him to serve 5 days in the Lancaster County jail, to pay a fine of $300 and the costs of prosecution, and suspended his operator's license for 1 year. This appeal pertains only to the subsequent proceeding involving the proof of appellant's first conviction.
The complaint, the warrant, and the mittimus on the first conviction were received into evidence without objection. The proof made on the first conviction was in strict conformity with the procedure outlined in Danielson v. State, 155 Neb. 890, 54 N.W.2d 56. We there said: '* * * proof of such convictions is properly made by offering in evidence the complaint or information, the judgment rendered on the verdict or the plea of guilty, evidence that the judgment has become final, and that defendant is the same person presently before the court.'
Appellant presents two questions by this appeal: (1) Does failure to subscribe and swear to a complaint, as required by law, render subsequent proceedings thereunder void when the defendant pleads guilty to the allegedly defective complaint; and (2) does denial of counsel in misdemeanor action create an infirmity which the defendant may raise in a subsequent proceeding under a second offense drunk driving prosecution?
Considering the first assignment, appellant's evidence would indicate that the complaint, which was signed by a deputy county attorney, was not sworn to before a judicial officer. There is little question on the record that the procedure adopted was irregular and was subject to a proper objection. If a plea in abatement had been filed, it would undoubtedly have been necessary to file an amended complaint. However, the appellant, by pleading guilty to the complaint, must be held to have waive any objection to it which could have been asserted by a motion to quash or a plea in abatement. Section 29-1812, R.R.S.1943, provides: 'The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.'
Appellant's second assignment is much more basic. His testimony is that he was arrested by officer Baumhover about 1 a.m., May 4, 1961, for drunk driving, and that when he was arrested he requested permission from Baumhover to use a telephone to contact an attorney and was told, "Not tonight." He further testified that Baumhover took him to the city jail and that he made the same request of the desk sergeant who checked him into the city jail, and was again refused. It was his testimony that about 9 a. m. the same morning he was taken from the city jail to the office of the deputy county attorney at the courthouse. On two occasions he requested permission to use a telephone to contact an attorney and the deputy county attorney ignored his request and made no reply thereto. He was asked several questions by the deputy county attorney, who then had him sign a paper. He was taken from the courthouse to the city jail, and then up to the municipal court. His testimony then was as follows:
Appellant was fined $100 and costs on his plea of guilty, and his operator's license was suspended for a period of 6 months. He delivered his license to the court at that time. A mittimus was issued committing him to jail until the fine and costs were paid. He paid his fine shortly thereafter, and was discharged from custody. Although appellant was without his operator's license for at least the next 6 months, he made no attempt to question the proceeding involved in this first conviction until his conviction on his second offense.
Officer Baumhover was produced as a witness for the State, and denied that he was the officer who arrested the appellant. He testified that he did not see him at all in the early morning hours of May 4, 1961. His contact with the appellant occurred later in the morning. The record indicates he was the officer who took appellant to the municipal court and who delivered him to the city jail after his plea of guilty.
Appellant's charge of denial of counsel is a serious one, and no court can condone it when it occurs. Defendant in any criminal prosecution must be given a reasonable opportunity to employ and consult with counsel; otherwise the right to be heard by counsel would be of little worth. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4....
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