Walker v. State

• Decision Date: 31 December 1924
• Docket Number: 23938
• Citation: 201 N.W. 640,113 Neb. 19
• Parties: PAUL B. WALKER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

201 N.W. 640

113 Neb. 19

PAUL B. WALKER v. STATE OF NEBRASKA

No. 23938

Supreme Court of Nebraska

December 31, 1924

ERROR to the district court for York county: LOVEL S. HASTINGS JUDGE. Affirmed.

AFFIRMED.

George W. France and Charles F. Stroman, for plaintiff in error.

O. S Spillman, Attorney General, and Lee Bayse, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN, GOOD and THOMPSON, JJ.

OPINION

ROSE, J.

In the district court for York county a jury found Paul B. Walker defendant, guilty of transporting intoxicating liquor in violation of law by means of an automobile. Sentence on the verdict was suspended conditionally, but forfeiture of the automobile was ordered. As plaintiff in error, Walker presents for review the record of his conviction.

In one of the assignments of error the information is challenged on the ground that it does not contain any charge against the automobile. The information was filed in the police court of York. Originally it contained three counts. In the second the use of the automobile by Walker for the unlawful transportation of intoxicating liquor in York county was specifically charged and the automobile itself was declared to be a nuisance. This count, however, was eliminated by a nolle prosequi before the verdict of guilty was returned. Irregularity on the part of the county attorney in abandoning the second count during the trial is made the subject of an assignment of error which is unavailing for the reason that the affidavits relating to this subject were not preserved in the bill of exceptions. In the third count Walker was accused of having unlawful possession of intoxicating liquor, but he was convicted of that offense in the police court of York and paid therefor a fine of $ 100. It was under the first count, therefore, that forfeiture of the automobile was ordered. Was the charge sufficient? In addition to Walker, "One Durant Six Automobile, Engine No. DX11405," was designated as a defendant. The time and place of the unlawful transportation by Walker were specifically stated. The first count concludes as follows:

"Paul B. Walker, then and there being, did then and there unlawfully transport intoxicating liquor along, over and upon the public highways of and in said county of York and state of Nebraska, in and by means of one Durant Six Automobile, Engine No. DX11405, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Nebraska."

The unlawful acts were stated. Comp. St. 1922, sec. 3274. The failure to charge the conclusion that the automobile was a common nuisance was not a fatal defect. Walker was fully apprised of his offense and of the use of his property for an unlawful purpose. The first count in connection with the formal parts of the information, duly verified, was sufficient. Smith v. McNulty, 107 Neb. 505, 186 N.W. 543. This assignment of error is...