Kissinger v. State

25 N.W.2d 829, 147 Neb. 983, 1947 Neb. LEXIS 132
CourtNebraska Supreme Court
DecidedJanuary 22, 1947
DocketNo 32149
StatusPublished
Cited by3 cases

This text of 25 N.W.2d 829 (Kissinger v. State) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kissinger v. State, 25 N.W.2d 829, 147 Neb. 983, 1947 Neb. LEXIS 132 (Neb. 1947).

Opinion

Chappell, J.

Plaintiff in error, hereinafter called defendant, was arrested by Nebraska City police officers and placed in the Otoe County Jail on January 12,1945. Thereafter, on January .13, 1945, a complaint was filed in the county court by the county attorney, charging that on or about January 12, 1945, defendant “did then and there unlawfully operate a [984]*984motor vehicle upon the highways of said County and State while under the influence of alcoholic liquor * * A warrant was duly issued and delivered to the sheriff, which was returned and filed January 13, 1945, showing service on defendant “by reading the same to her, and now have her before this County Court.” When defendant was brought before the court, whose jurisdiction is unquestioned, she pleaded guilty. Thereupon, within the purview of section 39-727, R. S. 1943, defendant was sentenced and adjudged to serve thirty days in the county jail and pay the costs of prosecution, her driver’s license was revoked for a period of one year, and she was ordered not to drive any motor vehicle in the state for a period of one year from the date of her discharge from the county jail, where she was duly committed, until her sentence was served, and costs paid, or she was otherwise lawfully discharged.

On January 16, 1945, after defendant had commenced serving the sentence, she gave notice of appeal, whereupon bond was fixed, filed, and approved, and she was released from custody to appear before the district court on the first day of the next jury term. Transcript was duly filed in the district court, together with defendant’s petition in error, praying for reversal and discharge. Therein, she claimed in substance that notwithstanding her plea of guilty, she was not in fact guilty and that the sentence of the county courj#7as void as in violation of due process of law, because she^Pas not advised of her constitutional rights before acceptance of her plea. The State answered, and upon trial, the district found against defendant, affirmed the judgment of the county court, and remanded the case thereto for execution of sentence. Motion for new trial was overruled, and defendant prosecuted error to this court.

Her assignments of error are, in substance, that the judgment of the district court is not sustained by the evidence and is contrary to law. It is argued that defendant’s rights to appear and defend by counsel, to have a copy of the accusation, to have witnesses in her behalf, and to have a [985]*985jury trial, as provided by the Constitution of Nebraska, section 11, article I, were not intelligently and competently waived by her judicial confession of guilt, because prior thereto the county court did not advise her that such rights were existent. We find that under the circumstances, defendant’s assignments cannot be sustained.

The record discloses that the transcript from the county court, which imports verity, was not only attached to and made a part of defendant’s petition in error, but was also offered in evidence by her. It provided in part: “The said complaint was thereupon read to the said defendant, and the said defendant being advised by the Court of her constitutional rights, entered a plea of guilty as therein charged. Upon consideration whereof the Court finds the defendant guilty as charged in the said complaint; it is, therefore, Considered, Ordered and Adjudged * * after which followed the sentence, in form and substance as specifically provided by statute. All of the proceedings in the county court were in strict conformity with sections 29-602, 29-609, and 29-518, R. S. 1943, the latter of which was construed and applied in Martin v. Sanford, 129 Neb. 212, 261 N. W. 136.

The record does not disclose that defendant ever formally asked to withdraw her plea of guilty either in the county court or the district court. However, the district court, without objection by the State, received evidence dehdte the record of the county court in explanation of what acridly did occur. In that connection, defendant was the only witness who testified in her behalf. She testified substantially that she was brought before the county court about noon on January 13, 1945, at which time the complaint was read to her and she pleaded guilty, without previously being advised by the court that she had the right to have counsel or have a jury trial, or call witnesses in her defense, or that she might be sent to jail. She also testified that she was never arrested previously, knew nothing about law or court procedure, and although admitting that she [986]*986had read or studied the Constitution of the United States, asserted that she was not familiar with her constitutional rights. At the time of the trial, she was twenty-four years of age, and .had attended school through four months of the eleventh grade in high school, after which she married and became the mother of two children.

It is interesting and instructive to note that without objection the trial court asked defendant a few pertinent questions which she answered. That evidence is as follows: “Q. Mrs. Kissinger, you mean that you didn’t understand what a plea of guilty was? A. Well, no, I didn’t really. .Guilty, I thought, was just telling the truth, and that was all that was to it; because I didn’t know anything about the law, or anything. Q. Telling the truth about what? A. What happened. * * * Q. And you don’t know what a plea of guilty or not guilty means? A. No, I never had any experience in that. Q. Didn’t you know that when a person pleads guilty they confess everything they did, * * * and when they plead not guilty they mean that they are not going to admit anything? Didn’t you. know that? A. Sure, I know that, but I just — I know I pleaded guilty because they were down there. I couldn’t have pled (sic) not guilty. Q. You couldn’t have plead not guilty? A. Well, I could have.”

The county judge testified for the State that the complaint was read to defendant, whereupon she was told by him that if she pleaded guilty it would be the duty of the court to impose a sentence, but if she pleaded not guilty the case would be set down for hearing at some future time and disposed of later, and that she had a right to have a lawyer if she wanted one. He did not say anything to her about a jury trial or tell her that she had a right to have witnesses in her behalf or inform her what the sentence could be or would be. The county sheriff and a newspaper reporter who were present during the proceedings verified the county judge’s testimony, which was also supported by the transcript itself.

[987]*987The record does not disclose that defendant ever asked for a copy of the complaint or requested permission to consult with or secure counsel or demanded a trial before her plea, but it discloses that before sentence was imposed she conferred with a lady in the courtroom, said to be her mother. There is no evidence from which it could be logically inferred that defendant .suffered from any disability or was either held incommunicado, put in fear, misled, or ill-advised by the court or anyone else prior to her plea or during the proceedings in the county court.

From a reading of the record, we can only conclude that defendant was a competent, intelligent woman, who obviously understood the simple charge against her, and knew that she had a right to. have a trial and appear and defend by counsel. It is evident that even after consultation with able counsel prior to and during these error proceedings, she still confessed her guilt in the district court.

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Related

Benson v. State
62 N.W.2d 522 (Nebraska Supreme Court, 1954)
Hawk v. State
39 N.W.2d 561 (Nebraska Supreme Court, 1949)
Clark v. State
34 N.W.2d 877 (Nebraska Supreme Court, 1948)

Cite This Page — Counsel Stack

Bluebook (online)
25 N.W.2d 829, 147 Neb. 983, 1947 Neb. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kissinger-v-state-neb-1947.