Wilson, Application of

• Decision Date: 27 October 1961
• Docket Number: No. 35043,35043
• Citation: 111 N.W.2d 372,172 Neb. 616
• Parties: In the Matter of the Application of Melvin Earl WILSON for a Writ of Habeas Corpus. Melvin Earl WILSON, Appellant, v. Thomas S. SOLOMON, Sheriff of Cass County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 372

111 N.W.2d 372

172 Neb. 616

In the Matter of the Application of Melvin Earl WILSON for a Writ of Habeas Corpus.

Melvin Earl WILSON, Appellant, v. Thomas S. SOLOMON, Sheriff of Cass County, Nebraska, Appellee.

No. 35043.

Supreme Court of Nebraska.

Oct. 27, 1961.

Syllabus by the Court

1. The sufficiency of evidence adduced at a preliminary examination to hold an accused to answer for a crime with which he is charged may be raised and tried in habeas corpus proceedings.

2. In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at a preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but will only inquire as to the existence of evidence to sustain the charge.

3. While a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is, nevertheless, competent evidence of that fact, and may, with slight corroborative circumstances, establish the corpus delicti as well as the defendant's guilty participation.

4. A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of Article I, section 11, of the Constitution of Nebraska.

Francis M. Casey, Plattsmouth, for appellant.

James F. Begley, Plattsmouth, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

MESSMORE, Justice.

The petitioner, as relator, sought release and discharge from custody of the respondent Thomas S. Solomon, sheriff of Cass County, by habeas corpus action filed in the district court upon the alleged ground that there was no sufficient or competent evidence adduced at the preliminary hearing that the crime of forcible rape had been committed, or that there was probable cause to believe the relator committed the alleged offense.

At the hearing upon the merits of the habeas corpus action there appears a bill of exceptions of the evidence taken at the preliminary hearing, including a voluntary statement made by the relator to the sheriff about 9:45 a. m., November 8, 1960. Thereupon, the trial court denied the writ and refused to release the relator who, for clarity, will be hereinafter called defendant. Thereafter the defendant's motion for new trial was overruled, and an appeal was taken to this court.

The defendant assigns as error, in substance: (1) The trial court erred in finding that the evidence adduced at the preliminary hearing was sufficient to hold the accused for trial in the district court; (2) the trial court erred in finding there was sufficient evidence adduced at the preliminary hearing to prove a corpus delicti; and (3) the trial court erred in failing to release and discharge the defendant from custody pursuant to his request for a writ of habeas corpus.

The following rules of law are applicable in the instant case.

In Birdsley v. Kelley, 159 Neb. 74, 65 N.W.2d 328, this court held: 'The sufficiency of evidence adduced at a preliminary examination to hold an accused to answer for a crime with which he is charged may be raised and tried in habeas corpus proceedings. * * * In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at a preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but will only inquire as to the existence of evidence to sustain the charge.'

In Gallegos v. State, 152 Neb. 831, 43 N.W.2d 1, 2, in dealing with a trial on the merits in the district court, we held: 'While a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is, nevertheless, competent evidence of that fact, and may, with slight corroborative circumstances, establish the corpus delicti as well as the defendant's guilty participation.' In that opinion we quoted with approval the following from Limmerick v. State, 120 Neb. 558, 234 N.W. 98: "The rule that the corpus delicti cannot be proved by the confession of the defendant is true as a general proposition, yet confessions or admissions may be considered in connection with the other evidence to establish the corpus delicti. It is not necessary to prove the corpus delicti by evidence entirely independent and exclusive of the confession or admissions. Groover v. State, 82 Fla. 427 90 So. 473, 26 A.L.R. 380; 17 R.C.L. 64, § 69." Thereafter, citing Egbert v. State, 113 Neb. 790, 205 N.W. 252, Whomble v. State, 143 Neb. 667, 10 N.W.2d 627, and Clark v. State, 151 Neb. 348, 37 N.W.2d 601, we said: 'This principle has often been reaffirmed by this court.'

In Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716, 721, we said: "A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of section 11, art. 1 of our Constitution.' Roberts v. State, 145 Neb. 658, 17 N.W.2d 666.

'The functional purpose of the preliminary hearing is stated in section 29-506, R.R.S.1943, as follows: 'If upon the whole examination * * * it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he is discharged by due course of law; * * *.'

"It is in no sense a trial of the person accused. Its purpose is to ascertain whether or not a crime has been committed, and whether or not there is probable cause to believe the accused committed it.' Roberts v. State, supra.

'The effect of the foregoing, if found to exist, is to hold the accused for trial in the district court, which has jurisdiction to try him. See Dobrusky v. State, 140 Neb. 360, 299 N.W. 539.' That is what the county court of Cass County did. See Cotner v. Solomon, 163 Neb. 619, 80 N.W.2d 587.

The record shows that Carol Sindelar is 20 years of age and lives at 1204 South Fourth Street in Plattsmouth; that she is a married woman, separated from her husband; and that she has one child, a little girl, and is expecting another child. This witness works at the Western Electric plant. Her hours are from 3:30 p. m., until midnight. Prior to November 7, 1960, she rode to work with a Mr. Ellingson and other employees of Western Electric. On November 7, 1960, the defendant Wilson took over the transporting of this witness and other employees of Western Electric to and from work. This witness testified that she had not been acquainted with the defendant before that time; that there were two other ladies and Mr. Ellingson who rode with the defendant; and that she did not know what the ladies names were, but she referred to one as Janet and the other as Gertie. They left Plattsmouth about 2:30 p. m. She got off work at midnight. All of the same people rode back to Plattsmouth in the defendant's car, and they drove straight through to Plattsmouth. Gertie was let out first at her home, Mr. Ellingson was let...