State v. Priebnow

• Decision Date: 29 May 1884
• Citation: 19 N.W. 628,16 Neb. 131
• Parties: THE STATE OF NEBRASKA, PLAINTIFF IN ERROR, v. OTTO PRIEBNOW AND MANNO FREY, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 628

16 Neb. 131

THE STATE OF NEBRASKA, PLAINTIFF IN ERROR, v. OTTO PRIEBNOW AND MANNO FREY, DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 29, 1884

OPINION

REESE J.

This is a proceeding in error by Wilbur F. Bryant, district attorney of the seventh judicial district, under the provisions of section 515 of the criminal code, for the purpose of obtaining the opinion of this court upon the questions presented by the record of the case. In order to a full understanding of the case it is necessary to briefly state the facts.

During the October term, 1882, of the district court of Cuming county, an indictment was duly presented against the defendants charging them with unlawfully cutting down, and injuring, destroying, and carrying away a large number of ornamental and shade trees of the value of one hundred and seventy-five dollars, then standing and growing in a grove, the property of David Neligh. To this indictment the defendants plead not guilty and a jury was impaneled to try the cause. The defendants objected to the introduction of any evidence in support of the indictment for the reason that the indictment did not charge a crime. Whereupon the court discharged the jury and required the defendants to enter into a recognizance in the sum of three hundred dollars for their appearance at the next term of court to await the action of the grand jury. To the ruling and orders of the court the district attorney excepted and brought the case to this court for review. The ruling of the district court was reversed by this court as appears by the report of the case in 14 Neb 484.

At the October term, 1883, the grand jury of Cuming county returned another indictment against these defendants in all respects like the former indictment, except that it was alleged that the trees were standing and growing in a certain grove, the property of some person or persons to the jurors unknown.

To the second indictment the defendants plead in bar a former acquittal and presented as part of said plea a transcript of the proceedings upon the former indictment with the usual allegations of identity, etc. To this plea the district attorney demurred. The demurrer coming on for hearing the record shows that, "The court overruled the demurrer, to which ruling the state by her attorneys at the proper time excepted. Whereupon the court finds from its own records that the allegations of such plea are true as therein set forth to which ruling the state by its attorneys excepted. Whereupon it is considered by the court that the said plea be sustained, and judgment is hereby rendered accordingly." The court then ordered the defendants discharged, to all of which the district attorney excepted and now brings the cause into this court by petition in error, and assigns for error the ruling of the court in sustaining the demurrer and in the...