Sutton v. State, 34067

• Citation: 80 N.W.2d 475,163 Neb. 524
• Decision Date: 11 January 1957
• Docket Number: No. 34067,34067
• Parties: James A. SUTTON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 475

80 N.W.2d 475

163 Neb. 524

James A. SUTTON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34067.

Supreme Court of Nebraska.

Jan. 11, 1957.

Syllabus by the Court

1. Unless otherwise provided by statute, one charged with a statutory misdemeanor has the right to demand a trial by jury in the county where the offense is alleged to have been committed but may waive his right thereto.

2. The right of trial by jury having been voluntarily waived by the accused, he thereafter has no right or power at his mere will to withdraw or revoke his waiver and demand a jury trial.

3. Whether one accused of crime who has regularly waived a jury trial will be permitted to withdraw the waiver and have his case tried before a jury is ordinarily within the discretion of the trial court.

4. It will be presumed, in the absence of a showing to the contrary, that the discretionary powers of the district court have been wisely exercised.

5. Abuse of discretion cannot be presumed, but must be made to appear by evidence before its existence can be found by an appellate court. The burden of showing an abuse of discretion rests on the appellant or plaintiff in error.

Spear, Lamme & Simmons, Fremont, for plaintiff in error.

Clarence S. Beck, Atty., Gen., Ralph D. Nelson, Asst. Atty. Gen., for defendant in error.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

On November 18, 1955, a complaint was filed by the State in a justice of the peace court of Dodge County charging plaintiff in error, James A. Sutton, hereinafter called defendant, with speeding on November 8, 1955, in violation of section 39-723, R.R.S.1943. On November 18, 1955, defendant appeared in that court with counsel and requested a jury trial. Thereupon the cause was set for jury trial on December 1, 1955. Defendant then appeared with counsel and upon trial to a jury defendant was found guilty and the court assessed a fine of $20 and costs.

Therefrom defendant appealed to the district court where the cause was set for trial to a jury on January 18, 1956. At that time defendant appeared with counsel and voluntarily waived a jury trial.

At request of defendant and upon the basis of defendant's waiver, the cause was then continued until the April term of court for trial without a jury. Thereafter the cause came on for trial on April 17, 1956, without a jury, whereat defendant appeared with counsel, waived reading of the complaint, and pleaded not guilty. Also, just before trial defendant's counsel asked to withdraw defendant's former waiver of jury trial, objected to trial without a jury, and renewed his motion for a jury trial. In his brief filed in this court, defendant states that: 'On or about April 15 defendant's attorney told the county attorney and judge that he was withdrawing his waiver and requested a jury trial.' However, we find nothing in the record to support that statement.

Be that as it may, the court 'denied request of defendant to withdraw waiver of jury trial,' and overruled defendant's motion for trial by jury. After trial to the court upon the merits without a jury, defendant was found guilty and assessed a fine of $20 and costs.

Defendant's motion for new trial was subsequently overruled and he prosecuted error to this court, assigning that: 'The district court erred in denying defendant's motion for trial by jury after defendant had waived jury trial.' In the light thereof, the sole question argued and submitted is whether or not the trial court erred prejudicially in denying defendant's request to withdraw his waiver of jury trial and in overruling defendant's motion for trial by jury. We conclude that the court did not err in so doing.

In Peterson v. State, 157 Neb. 618, 61 N.W.2d 263, we held that: 'Unless otherwise provided by statute, one charged with a statutory misdemeanor has the right to demand a trial by jury in the county where the offense is alleged to have been committed but may waive his right thereto.'

An applicable rule is that the right of trial by jury having been voluntarily waived by the accused, he thereafter has no right or power at his mere will to withdraw or revoke his waiver and demand a jury trial. State v. Bannock, 53 Minn. 419, 55 N.W. 558.

As stated in Annotation, 46 A.L.R.2d 920, citing and discussing numerous cases: 'Whether one accused of crime who has regularly waived a jury trial will be permitted to withdraw the waiver and have his case tried before a jury is ordinarily within the discretion of the trial court.' See, also, 50 C.J.S., Juries, § 111 b, p. 825, and cited authorities. The authorities cited in the foregoing texts point out the elements which must appear in the record in order to be considered by the appellate court in each individual case to determine whether or not the trial court abused its discretion in refusing to...