Trimble v. State

• Decision Date: 10 April 1901
• Parties: TRIMBLE ET AL. v. STATE.
• Court: Nebraska Supreme Court

61 Neb. 604

85 N.W. 844

TRIMBLE ET AL.

v.STATE.

Supreme Court of Nebraska.

April 10, 1901.

Syllabus by the Court.

1. A plea of not guilty, whether made by the accused, or entered by the court for him when on arraignment he stands mute, is a waiver of all defects in an information that can be reached by a motion to quash.

2. The words “prosecuting attorney,” in sections 579, 580, Cr. Code, construed to mean “county attorney.”

3. Informations for crimes must be by the county attorney of the proper county, and be verified by his oath.

4. The clerk of the district court may properly take verifications of informations.

5. A court will take judicial notice of its clerk.

6. The name of an additional witness discovered after the filing of an information may be indorsed thereon before trial.

7. In a prosecution for robbery from the person, it is not necessary to a conviction that the prosecuting witness testify in so many words that he did not consent to the taking of the property, if his whole testimony discloses his nonconsent.

Error to district court, Merrick county; Hollenbeck, Judge.

Daniel J. Trimble and George W. Wilson were convicted of the crime of robbery, and bring error. Affirmed.John C. Martin and W. T. Thompson, for plaintiffs in error.

The Attorney General, for the State.

NORVAL, C. J.

Daniel J. Trimble and George W. Wilson were convicted of the crime of robbery from the person of one William Ferguson, and sentenced to a term of imprisonment in the penitentiary. The defendants, together with John Shea and William Hurley, were jointly charged in the information with the commission of the crime. Shea and Hurley were granted trials separate and apart from the other two. When Trimble and Wilson were arraigned, they stood mute and refused to plead to the information. Thereupon the court entered for them a plea of not guilty. On the day of the trial they filed a motion to quash the information, which the court ordered stricken from the files, and this ruling is the first error of which complaint is here made. This order of the court was clearly right. The motion to quash was filed without leave of court, while the plea of not guilty was upon the records. Section 444 of the Criminal Code declares that “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.” A plea of not guilty is a waiver of any defect in the information that can be reached by a motion to quash. It is, however, argued that said section 444 does not apply to this class of cases, since the defendants, when arraigned on the information, remained mute, and the court, under the Criminal Code, entered a plea of not guilty for each of them. Such action of the court was for the benefit of defendants, and they knew such a plea would be entered on the records for them if they made no plea themselves; and when so entered it became their plea, which they could have withdrawn at any time, by leave of court, precisely the same as if they had made the plea in the first instance. We have no doubt that the provisions of the section quoted are applicable to this case.

Moreover, the motion to quash was without substantial merit. It was based upon the following grounds: (1) The information was not filed by, or verified by the oath of, the prosecuting attorney; (2) the information was not sworn to before a magistrate or other judicial officer authorized to administer oaths.

The information in the case at bar was filed in the district court of Merrick county by the county attorney of that county, and it was verified by his oath. It is true that section 579 of the Criminal Code provides that all informations shall be filed “by the prosecuting attorney of the proper county,” and likewise that section 580 of the same Code requires all informations to be “verified by the oath of the prosecuting attorney.” The words “prosecuting attorney,” in said sections, mean “county attorney.” Chapter 7, § 26, Comp. St. The information was filed by, and verified under the oath of, the proper officer. Dinsmore v. State (Neb.) 85 N. W. 445.

The information before us was sworn to before the clerk of the district court, who has authority to take verifications of informations in criminal cases. State v. Lauver, 26 Neb. 757, 42 N. W. 762;Sharp v. State (Neb.) 85 N. W. 38. The jurat to the verification was signed, “J. C. Jeffers, Clerk.” This was sufficient. The court below took judicial notice of its clerk.

After filing the information, and...