§ 29-1812 — Defects; when considered waived

Nebraska § 29-1812

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.

Legislative History

Source: G.S.1873, c. 58, § 444, p. 822; R.S.1913, § 9088; C.S.1922, § 10113; C.S.1929, § 29-1811; R.S.1943, § 29-1812. Annotations: 1. Plea of not guilty 2. Demurrer 3. Miscellaneous 1. Plea of not guilty Overruling motion to quash information made after defendant had pleaded not guilty was proper. State v. Fiegl, 184 Neb. 704, 171 N.W.2d 643 (1969). 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). Plea in abatement was properly overruled when filed after entry of plea of not guilty. Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952). Objection that a preliminary hearing in a criminal case has not been had is waived by a plea of not guilty in the district court. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945). Where defendant enters plea of not guilty to amended information, he waives all defects which might have been excepted to by motion to quash or plea in abatement. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941). Plea of not guilty waives all defects which may be excepted to by plea in abatement. Uerling v. State, 125 Neb. 374, 250 N.W. 243 (1933). Objection that accused has not had preliminary examination is waived unless made before plea of not guilty is entered. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901). 2. Demurrer A motion to quash filed simultaneously with a demurrer to the indictment is not barred by this section. State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980). Where demurrer to information is first filed and overruled, defects which might have been raised by motion to quash are waived. Wiese v. State, 138 Neb. 685, 294 N.W. 482 (1940). Defects in an information 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). Demurrer to information or plea of not guilty waives all defects which may be excepted to by motion to quash or plea in abatement. Green v. State, 116 Neb. 635, 218 N.W. 432 (1928); Olsen v. State, 114 Neb. 112, 206 N.W. 1 (1925); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901). 3. Miscellaneous The proper method of objecting to trial in the district court for the insufficiency of a preliminary hearing, or the failure to provide one at all, is by a timely motion to quash or a plea in abatement. State v. Johnson, 314 Neb. 20, 988 N.W.2d 159 (2023). Under this section, once a defendant has entered a plea, or a plea is entered for the defendant by the court, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash, even if the defendant entered his plea through a written arraignment under section 29-4206. State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006). This section applies where a plea is entered for a defendant by the court. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996). All defects that may be excepted to by a motion to quash are taken as waived by a defendant pleading the general issue. State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987). This section applies whether plea is by defendant in person or by the court for him if he stands mute. State v. Etchison, 190 Neb. 629, 211 N.W.2d 405 (1973). Challenge to certainty and particularity of information which states an offense in the words of the statute is waived by pleading the general issue. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973). Defendant's assignment of error that court lacked jurisdiction because information failed to contain a distinct allegation of each element of crime waived by guilty plea. State v. Workman, 186 Neb. 467, 183 N.W.2d 911 (1971). Defendant, by pleading guilty, waived objection that might have been raised by plea in abatement. State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (1966). Waiver applied only to those matters which may be raised by motion to quash. 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). Information was not subject to charge of duplicity, and defects therein were waived. Sudyka v. State, 123 Neb. 431, 243 N.W. 276 (1932). Defects in information were waived. Matters v. State, 120 Neb. 404, 232 N.W. 781 (1930). Filing plea in bar constitutes waiver of all matters necessary or proper to be raised by plea in abatement. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923). Objections to empaneling grand jury may be presented by plea in abatement; if there is no ruling or refusal to rule thereon, objection is waived; cannot be taken by motion in arrest of judgment. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912). Defects which might have been attacked by motion to quash or plea in abatement are waived when defendant pleads to general issue or when plea is entered for him by court. Huette v. State, 87 Neb. 798, 128 N.W. 519 (1910); Ingraham v. State, 82 Neb. 553, 118 N.W. 320 (1908).