White v. State

• Decision Date: 31 December 1889
• Citation: 28 Neb. 341,44 N.W. 443
• Parties: WHITE v. STATE.
• Court: Nebraska Supreme Court

28 Neb. 341

44 N.W. 443

WHITE

v.STATE.

Supreme Court of Nebraska.

Dec. 31, 1889.

Syllabus by the Court.

1. A title is no part of a complaint made before a magistrate, charging a person with a criminal offense, and in a complaint charging M. with having committed the crime of larceny, the words, “State of Nebraska vs. M. & W.,” placed in the upper left-hand corner of the paper, upon which such complaint is written, held not sufficient to make such complaint a joint one against M. and W.

2. A complaint under oath, made before a magistrate, held necessary to give such magistrate jurisdiction to make a preliminary examination of a person accused of a criminal offense.

3. An examination made by a magistrate of a person accused of crime, where the magistrate has not jurisdiction, is not “a preliminary examination therefor, as provided by law,” in the sense of those words as used in section 585 of the Criminal Code.

4. An information filed in the district court by the county attorney against an accused person for an offense for which such accused person had not had a preliminary examination, as provided by law, confers no jurisdiction upon said district court to try and punish said accused person for such offense, unless in the excepted cases provided for in section 585 of the Criminal Code.

Error to district court, Douglas county; GROFF, Judge.

Winfield S. Strawn, for plaintiff in error.

Wm. Leese, Atty. Gen., for the State.

COBB, J.

The plaintiff in error and one Frank Miller were jointly informed against in the district court of Douglas county for burglariously entering a dwelling-house, and stealing therefrom a quantity of silver-ware. Miller pleaded guilty. White pleaded not guilty, was tried, and convicted. He presented a motion for a new trial, which was overruled. Immediately thereafter, and before sentence, he presented a motion in arrest of judgment, which was also overruled, and he was thereupon sentenced to punishment in the state's prison. The following are the grounds stated in the last-named motion: (1) That the county attorney who filed the information had no legal authority to inquire into the offense alleged in this court, for the reason of its not being within the jurisdiction of the court; (2) that no information was ever filed against this defendant, and preliminary examination had thereon by some magistrate or competent authority, and there has been no indictment or presentment of this defendant by any grand jury; (3) that the only pretense there has ever been of giving this defendant a preliminary examination was for another and different crime than that for which the county attorney has informed against him, and on which he was tried in this court and in this case; (4) that he never was informed against, and had any preliminary examination for or on the charge upon which the state has assumed to put him on trial in this court, nor was he ever presented to this court on such charge by any grand jury; (5) that he has been, and by the proceedings in this case is, sought to be deprived of his liberty without due process of law. To the overruling of said motion the said Charles White excepted, and brings the cause to this court on error.

The plaintiff in error assigns 27 errors. They will not be set out here, but such of them only as it may be deemed necessary to discuss will be stated as we proceed. It appears from the record that on the 12th day of June, 1888, one Duff Green, who otherwise appears to have been a policeman, made a complaint before the police judge of the city of Omaha against one Frank Miller for grand larceny in stealing, taking, and carrying away from the premises, 818 Park place, in the city of Omaha, certain silver-ware (describing it) of the value of $94, the property of E. J. Lalk. The name of Charles White does not appear in the charging part of this complaint, but contrary to the usual form, just below the venue, there was a title, in which the name of “Charles White” does appear after that of “Frank Miller, alias Frank Wilson.” The appearance of the name of plaintiff in error upon the paper in that manner has, as I conceive, no legal significance. It also appears that a joint warrant was issued by the said police judge for the arrest of Frank Miller, alias Frank Wilson, and Charles White; that they were brought before the police judge, whereupon Wilson waived an examination, and White was examined and committed. Afterwards, on the 15th day of June next thereafter, the county attorney of said county presented a joint information in the district court against the said Frank Miller, alias Frank Wilson, and Charles White, for burglary and larceny in breaking and entering, in the day-time, the dwelling-house of E. J. Lalk with intent to steal, etc., and stealing certain articles of silverware, in said information described, of the value of $94. The plaintiff in error raised the question of the jurisdiction of the district court to sentence him to punishment for the felony for which he was tried, by his motion in arrest. Section 493 of the Criminal Code provides that “a motion in arrest of judgment may be granted by the court for either of the following causes: First, that the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court,” etc. At the time of the adoption of the Code containing the section above in part quoted there was but one method of bringing a criminal action of the grade of felony within the power and jurisdiction of a court for trial and the punishment of an offender. That was by indictment by a grand jury. Then, although, as now, the law provided for the making of a complaint before a magistrate against persons accused of crime, for the arrest of such persons, the bringing of them before such magistrate, or some other magistrate of the county, and for the examination and holding to bail, or committing of such accused person, yet such proceedings were not in a strictly legal sense a necessary part of the prosecution of such person for the crime; but a grand jury could, and still can, for that matter, without regard to previous charge and arrest on examination, receive and act upon original charges made by one of their own number, or any other person who may desire to come before them for that purpose, against any person, and upon sufficient proof find and present an indictment, and upon the arraignment of the person thus indicted, except in cases where the person indicted has been brought within its...