§ 29-1808 — Motion to quash; when made

Nebraska § 29-1808

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

A motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged.

Legislative History

Source: G.S.1873, c. 58, § 440, p. 822; R.S.1913, § 9084; C.S.1922, § 10109; C.S.1929, § 29-1807; R.S.1943, § 29-1808. Annotations: 1. Defects 2. Waiver 3. Miscellaneous 1. Defects Objections to an information or the content of an information should be raised by a motion to quash. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016). The charging of alternative means of committing the same crime that are incongruous as a matter of law is a defect apparent on the face of the record. State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015). Objections to the form or content of an information should be raised by a motion to quash. A defendant's failure to file a motion to quash the information waives objections to it, even when the objection is aimed at an amended information superseding the original information filed against the defendant. State v. Meers, 257 Neb. 398, 598 N.W.2d 435 (1999). A motion to quash is the proper method to attack the requisite certainty and particularity of an information in a criminal case. State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987). The defendant's motion to quash should have been sustained by the trial court because his testimony given under oath before a special legislative committee was not subject to prosecution as perjury under section 28-915. State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986). Challenge to certainty and particularity of information which states an offense in the words of the statute may be made by a motion to quash, but not by a motion in arrest of judgment. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973). In a criminal prosecution for picketing, failure to allege the essential elements of the offense renders the information subject to a motion to quash. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939). Defects in indictment which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936). Defects in verification should be raised by motion to quash before pleading to information. Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891). A motion to quash which raises the issue of the admissibility of a defendant's prior driving under the influence convictions, for enhancement purposes, should not be filed until after a determination of the defendant's guilt on the underlying offense. State v. Head, 14 Neb. App. 684, 712 N.W.2d 822 (2006). 2. Waiver A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967). Failure to file motion to quash is not a waiver where information wholly fails to allege essential element of crime. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959). Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940). Defects in indictment which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936). Failure to make motion to quash is waiver of any defect on face of information. Matters v. State, 120 Neb. 404, 232 N.W. 781 (1930). 3. Miscellaneous The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999). Disqualification of members of jury panel to serve cannot be raised by motion to quash. State v. Eggers, 175 Neb. 79, 120 N.W.2d 541 (1963). Motion to quash was properly overruled in case stated. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904). The proper procedure for determining the admissibility of prior driving under the influence convictions as prior convictions for the purposes of enhancement is to file a motion to quash on the enhancement issues after a determination of guilt on the underlying offense. State v. Head, 14 Neb. App. 684, 712 N.W.2d 822 (2006).