Wozniak v. State

174 N.W. 298, 103 Neb. 749, 1919 Neb. LEXIS 145

• Court: Nebraska Supreme Court
• Decided: September 27, 1919
• Docket: No. 20945
• Status: Published

Opinions

Sedgwick, J.

The defendant was convicted and sentenced to the penitentiary for a term not exceeding two years, under section 56, ch. 187, Laws 1917. The original information charged the defendant with keeping intoxicating liquors “at a place other than his private dwelling house,”, which would he criminal under section 11 of the act. When the evidence developed that the liquor was kept at his dwelling house, the prosecution asked to amend the information by striking out those words and adding the words “for unlawful purposes.” This was objected to, but the amendment was allowed. Section 11 provides that no person shall keep intoxicating liquors in his dwelling house “in an amount more than is reasonably sufficient for his personal use and needs.” The violation of this provision was not charged .in the information, and it is not stated in the briefs under which provision of the statute the words, “for unlawful purposes,” were inserted in the information. The language of the information in this regard is not as definite as is generally used in charging a felony.

Section 9080, Rev. St. 1913, provides: “Within twenty-four hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff, the defendant or his counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant, and no one shall be, without his assent, arraigned or called on to answer to any indictment until one day shall have elapsed, after receiving in person or by counsel, or having an opportunity to receive a copy of such indictment as aforesaid.”

The first objection presented is that the defendant was not served with any copy of the information. As this was a prosecution for a felony, the statute is mandatory that the defendant must be served with such copy, and that he cannot be put upon trial until one day after such service. The brief of the state says: “The record shows that defendant was served in due time with a copy of the information;” but no reference is made to the place in the record where this is found, and we have not observed it. In Preuit v. People, 5 Neb. 377, it is said that failure to enter the prisoner’s plea, on the back of the Indictment is not ground for the reversal of the judgment “when the plea is contained in another part of the record.” This indicates the reasonable rule that the record must show affirmatively the compliance with those provisions of the statute that are intended to secure to the defendant a fair trial.- The defendant - objected at the- time, “for the reason that no copy of the information was served upon the defendant in this case 24 hours previous to this trial.” The court overruled the objection without any suggestion from any one that the information had been properly served upon the defendant, and then the court suggested, “I suppose there should be a plea of some kind here,” and the prosecuting attorney said; “I don’t know whether he has been arraigned in this court.” The defendant then objected to “being arraigned at this time, for the reason the jury has already been picked and sworn to try this case.” The court then entered upon the record this statement: “Let the record show that the jury has been examined and sworn and the statements made, the defendant not having been arraigned, and under objection to the arraignment the court enters a plea of not guilty for him.”

“A judgment of conviction of felony cannot stand where there was no arraignment of, and plea by, the accused before the trial.” Browning v. State, 54 Neb. 203. The counsel for the prosecution seemed to have overlooked the fact that they were trying this man for an alleged felony, and that it was necessary to observe the rules of law intended for the protection of the accused in such cases.

Under the statute, the first and second offenses are misdemeanors with different penalties attached, and the third offense is a felony. The information specified the dates on which it was alleged the defendant was convicted of the former offenses charged. The court submitted the case to the jury on the theory that they must either find him guilty of the third offense constituting the felony, or find him not guilty. This was erroneous. When the evidence is clear of the particular offense charged, but is doubtful as to prior offenses, the rights of the defendant might be prejudiced by such an instruction.

There are other errors discussed in the briefs, but they may be covered by the general observation that, in prosecutions for violations of the prohibitory statute, the constitutional rights of the defendant, and the established law for enforcing, those rights, must be observed, so far at least as not abrogated by express provisions of the statute. There is nothing in this statute to the effect that prosecutions for felony under its provisions are to be entirety without the ordinary safeguards of the rights of the accused.

• The judgment is reversed and the cause remanded for further proceedings.

Beversed.