Whetstone v. State

• Decision Date: 15 February 1923
• Docket Number: No. 22865.,22865.
• Citation: 192 N.W. 124,109 Neb. 655
• Parties: WHETSTONE v. STATE.
• Court: Nebraska Supreme Court

109 Neb. 655

192 N.W. 124

WHETSTONE

v.STATE.

No. 22865.

Supreme Court of Nebraska.

Feb. 15, 1923.

Syllabus by the Court.

For the purposes of an appeal by a defendant who has been convicted of a misdemeanor in a prosecution before a justice of the peace, a recognizance with one surety only does not comply with a statutory requirement for a recognizance “with sureties,” and is fatally defective. Comp. St. 1922, § 9999.

Error to District Court, Brown County; Dickson, Judge.

William Whetstone was convicted before a justice of the peace of a violation of the law relating to intoxicating liquors, and from an order of the district court dismissing his appeal, he brings error. Affirmed.John Wright, of Terre Haute, Ind., for plaintiff in error.

Clarence A. Davis, Atty. Gen., and John M. Cotton, Co. Atty., of Ainsworth, for the State.

Donald Gallagher, Co. Atty., of O'Neill, amicus curiæ.

Heard before MORRISSEY, C. J., ROSE, ALDRICH and GOOD, JJ., and RAPER and TROUP, District Judges.

ROSE, J.

In a prosecution by the state before the justice of the peace for Pine precinct, Brown county, William Whetstone, defendant, was charged in three counts of an information with three separate violations of the law relating to intoxicating liquors. The offenses described were respectively possession, transportation, and giving away intoxicating liquors. Upon a trial defendant was convicted as charged and was sentenced to pay a fine of $100 for each of the three offenses. For the purposes of an appeal to the district court for Brown county, the justice of the peace took the recognizance of William Whetstone, defendant, in the sum of $1,000, with Allen E. Whetstone, as sole surety. The district court, holding that the law required more than one surety, dismissed the appeal. Defendant, as plaintiff in error, presents the record for review.

Was the appeal from the justice of the peace properly dismissed in the district court on the ground that the statute requires more than one surety on the recognizance? The statute relating to appeals in prosecutions for minor offenses declares, among other things:

“No appeal shall be granted or proceedings stayed unless the appellant shall, within twenty-four hours after the rendition of such judgment, enter into a recognizance to the people of the state of Nebraska in a sum not less than one hundred dollars, and with sureties to be fixed and approved by the magistrate before whom said proceedings were had, conditioned for his appearance at the district court of the county at the next term thereof, to answer the complaint against him.” Comp. St. 1922, § 9999.

These statutory provisions were considered in Zobel v. State, 72 Neb. 427, 100 N. W. 947, and it was therein said, referring to Pill v. State, 43 Neb. 23, 61 N. W. 96:

“The substance of the decision is to the effect that the provisions of the statute are mandatory and must be complied with in all material respects, otherwise the recognizance is fatally defective and confers no jurisdiction upon the district court. To the same effect is Kazda v. State, 52 Neb. 499. It would seem from a reading of said section of the Criminal Code respecting appeals in misdemeanor cases, that the entering into a recognizance by the defendant, and with sureties, to be fixed and approved by the court, is just as imperative...