§ 29-1603 — Allegations; how made; joinder of offenses; rights of defendant

Nebraska § 29-1603

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) All informations shall be in writing and signed by the county attorney, complainant, or some other person, and the offenses charged therein shall be stated with the same fullness and precision in matters of substance as is required in indictments in like cases.
(2)(a) Any information charging a violation of section 28-303 and in which the death penalty is sought shall contain a notice of aggravation which alleges one or more aggravating circumstances, as such aggravating circumstances are provided in section 29-2523 . The notice of aggravation shall be filed as provided in section 29-1602 . It shall constitute sufficient notice to describe the alleged aggravating circumstances in the language provided in section 29-2523 .
(b) The state shall be permitted to add to or amend a notice of aggravation at any time up to and including the thirtieth day prior to the trial of guilt.
(c) The existence or contents of a notice of aggravation shall not be disclosed to the jury until after the verdict is rendered in the trial of guilt.
(3) Different offenses and different degrees of the same offense may be joined in one information, in all cases in which the same might by different counts be joined in one indictment; and in all cases a defendant or defendants shall have the same right, as to proceedings therein, as the defendant or defendants would have if prosecuted for the same offense upon indictment.

Legislative History

Source: Laws 1885, c. 108, § 3, p. 397; R.S.1913, § 9064; C.S.1922, § 10088; C.S.1929, § 29-1603; R.S.1943, § 29-1603; Laws 2002, Third Spec. Sess., LB 1, § 5; Laws 2011, LB669, § 22; Laws 2015, LB268, § 12; Referendum 2016, No. 426. Note: The changes made to section 29-1603 by Laws 2015, LB 268, section 12, have been omitted because of the vote on the referendum at the November 2016 general election. Annotations: 1. Allegations, generally 2. Allegations, specific offenses 3. Verification 1. Allegations, generally The requirement that a notice of aggravators be filed prior to trial is not applicable to cases in which the pretrial and trial litigation steps have already been completed. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003). Separate offenses must be set out in separate counts in an information, but failure is cured by verdict when no objection was made. State v. French, 195 Neb. 88, 236 N.W.2d 832 (1975). Defense of statute of limitations is equally applicable to prosecution upon information as by indictment. Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951). Information is defective if it charges commission of offense as subsequent to filing. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912). Averment of matters which are immaterial and unnecessary ingredients of offense is surplusage. Nelson v. State, 86 Neb. 856, 126 N.W. 518 (1910). Where statute contains an exception, information should negative same, unless affirmative part clearly negatives exception. Holmes v. State, 82 Neb. 406, 118 N.W. 99 (1908). Race or color of defendant should not be designated unless required by statute. Harris v. State, 80 Neb. 195, 114 N.W. 168 (1907). Information must charge every essential element of the offense. Herbes v. State, 79 Neb. 832, 113 N.W. 530 (1907); Moline v. State, 67 Neb. 164, 93 N.W. 228 (1903); O'Connor v. State, 46 Neb. 157, 64 N.W. 719 (1895). Information must be positive and not on belief. Steinkuhler v. State, 77 Neb. 331, 109 N.W. 395 (1906). Precise words of statute are not necessary in charging offense; words identical in meaning are sufficient. Higbee v. State, 74 Neb. 331, 104 N.W. 748 (1905); Smith v. State, 72 Neb. 345, 100 N.W. 806 (1904). Word "feloniously" is not necessary in information charging all essential elements of felony. Reno v. State, 69 Neb. 391, 95 N.W. 1042 (1903). Information is vulnerable on demurrer if offense is not charged in positive terms. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902). Information need not negative exceptions of statute which are not descriptive of offense. Sofield v. State, 61 Neb. 600, 85 N.W. 840 (1901). When there is identity of names in two counts, presumption is that both refer to same person. Dunn v. State, 58 Neb. 807, 79 N.W. 719 (1899). Information will sustain conviction of lower offense involved in that charged. Mulloy v. State, 58 Neb. 204, 78 N.W. 525 (1899). Information must charge same offense as complaint or substantially the same. Mills v. State, 53 Neb. 263, 73 N.W. 761 (1898). It is not necessary to conclude, "against the peace and dignity of the state." Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897). Charging offense with unnecessary particularity is not fatally defective. State v. Kendall, 38 Neb. 817, 57 N.W. 525 (1894). Negative averment of the matter of a proviso is not required unless it enters into and becomes a part of the description of the offense. Gee Wo v. State, 36 Neb. 241, 54 N.W. 513 (1893). An unnecessary amendment is not prejudicial to defendant. Braithwaite v. State, 28 Neb. 832, 45 N.W. 247 (1890). Information must allege crime was committed within jurisdiction of court. McCoy v. State, 22 Neb. 418, 35 N.W. 202 (1887). 2. Allegations, specific offenses An information charging an attempt to commit "robbery" is sufficient though it omits "with intent to steal", and allowing amendment to add those words during trial is not prejudicial error. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982). Failure to allege the result of the acts complained of in prosecution for picketing renders the information not precise or complete enough to comply with this section. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939). Charge in language of statute is sufficient. Goff v. State, 89 Neb. 287, 131 N.W. 213 (1911). Omission of word "maliciously" from information for burglary was immaterial error. Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910). It is sufficient, as to ownership, to allege that money or property embezzled belonged to an estate. Hendee v. State, 80 Neb. 80, 113 N.W. 1050 (1907). Information charging embezzlement from a city was sufficient. Bode v. State, 80 Neb. 74, 113 N.W. 996 (1907). In prosecution for illegal fencing of highway, information failing to charge road was in common use will not support a conviction. Gilbert v. State, 78 Neb. 636, 111 N.W. 377 (1907). In prosecution for attempt to corrupt witness, necessary allegations of information stated. Gandy v. State, 77 Neb. 782, 110 N.W. 862 (1906). Requirements of information charging rape stated. Hubert v. State, 74 Neb. 220, 104 N.W. 276 (1905), motion for rehearing denied 74 Neb. 226, 106 N.W. 774 (1906). Information for murder in first degree is set out and held sufficient to sustain conviction. Barker v. State, 73 Neb. 469, 103 N.W. 71 (1905). Information charging obtaining property by false pretenses was sufficient. West v. State, 63 Neb. 257, 88 N.W. 503 (1901). In information for burglary, it is proper to allege ownership in person having visible occupancy and control of premises. Hahn v. State, 60 Neb. 487, 83 N.W. 674 (1900). Charging carrying on of a lottery on divers days is bad for duplicity, offense not being a continuing one. State v. Dennison, 60 Neb. 192, 82 N.W. 628 (1900). In information charging rape, all unlawful acts within period of limitation may be charged. Bailey v. State, 57 Neb. 706, 78 N.W. 284 (1899). Information for assault with intent to kill was good. McVey v. State, 57 Neb. 471, 77 N.W. 1111 (1899). Information for larceny is not fatally defective for failure to state exact time, when time is not essence of offense. Rema v. State, 52 Neb. 375, 72 N.W. 474 (1897). Charge of malpractice and contempt may be joined if both involve same transaction. Blodgett v. State, 50 Neb. 121, 69 N.W. 751 (1897). Information charging practice of medicine and surgery without certificate was sufficient. Jones v. State, 49 Neb. 609, 68 N.W. 1034 (1896). Where information charges assault with intent to commit rape by force, it is not necessary to allege age of person upon whom assault was committed or age of defendant. Hall v. State, 40 Neb. 320, 58 N.W. 929 (1894). 3. Verification To meet the requirement that an information shall be verified by the oath of the county attorney, it is sufficient if it appears, no matter in what form, that the truth of the charge or charges contained in the information are confirmed and substantiated by the oath of the county attorney. State v. Jones, 254 Neb. 212, 575 N.W.2d 156 (1998). Information verified by some person other than county attorney is sufficient and renders additional verification by prosecuting official unnecessary. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940). Verification to information is sufficient if it appears, no matter in what form, that truth of charges contained therein is confirmed and substantiated by oath of county attorney. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927). It is sufficient if information is verified by county attorney on information and belief. Watson v. State, 109 Neb. 43, 189 N.W. 620 (1922). Objection to verification is waived if not made before arraignment and plea. Emery v. State, 78 Neb. 547, 111 N.W. 374 (1907). Verification must be before magistrate authorized to administer oaths, clerk of court or deputy. Nightingale v. State, 62 Neb. 371, 87 N.W. 158 (1901); Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891). Terms "prosecuting attorney" and "county attorney" are synonymous. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901). Information may be verified by county attorney. Trimble v. State, 61 Neb. 604, 85 N.W. 844 (1901).