§ 29-1817 — Plea in bar; allegations; reply to plea; how issues tried

Nebraska § 29-1817

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

The accused may then offer a plea in bar to the indictment that he has before had judgment of acquittal, or been convicted, or been pardoned for the same offense; and to this plea the county attorney may reply that there is no record of such acquittal or conviction, or that there has been no pardon. On the trial of such issue to the court or to a jury, if the court desires to submit such issue to a jury, the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record or mentioned in the pardon; and shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.

Legislative History

Source: G.S.1873, c. 58, § 449, p. 822; R.S.1913, § 9093; C.S.1922, § 10118; Laws 1927, c. 61, § 1, p. 222; C.S.1929, § 29-1816; R.S.1943, § 29-1817. Annotations: 1. Scope 2. Procedure 1. Scope A plea in bar may be used to raise a double jeopardy challenge to the State's right to retry a defendant following a mistrial. State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017). Invalidity of law under which defendant is prosecuted cannot be raised by plea in bar. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923). Where amendment of information is made after trial has begun, there being no change in offense charged, accused is not thereby placed in jeopardy second time. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912). Former complaint which failed to allege facts sufficient to constitute crime is not bar. Roberts v. State, 82 Neb. 651, 118 N.W. 574 (1908). Judgment of court which had no jurisdiction of subject matter is no bar. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907). Prosecution for burglary resulting in mistrial is no bar. Sharp v. State, 61 Neb. 187, 85 N.W. 38 (1901). Plea in bar is waiver of plea in abatement; truth of averments of plea is tried to jury. Bush v. State, 55 Neb. 195, 75 N.W. 542 (1898). Discharge of jury without sufficient cause may amount to acquittal. Conklin v. State, 25 Neb. 784, 41 N.W. 788 (1889); State v. Shuchardt, 18 Neb. 454, 25 N.W. 722 (1885). Conviction in another country is not necessarily a bar. Marshall v. State, 6 Neb. 120 (1877). Driving while under the influence of alcohol and refusal to submit to a chemical test are not the same offense for double jeopardy purposes, and double jeopardy does not prohibit the State from prosecuting the two offenses in a single prosecution. State v. Grizzle, 18 Neb. App. 48, 774 N.W.2d 634 (2009). 2. Procedure A plea in bar pursuant to this section may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009). A plea in bar is not a proper procedure after a defendant's conviction has been affirmed on appeal, and the cause is remanded only for resentencing. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). Plea in bar may be disregarded if presented while plea of not guilty remains on record; but if former is considered, latter is treated as withdrawn. George v. State, 59 Neb. 163, 80 N.W. 486 (1899). Plea of "former jeopardy" should be set out in record; is invalid unless sworn to. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897). Defense of statute of limitations is availed of under plea of "not guilty." Boughn v. State, 44 Neb. 889, 62 N.W. 1094 (1895). Plea in bar may be demurred to; under former statute, issue should be joined and tried to jury; former jeopardy is ground for plea. Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894); Murphy v. State, 25 Neb. 807, 41 N.W. 792 (1889). The defendant's claim that he was being subjected to multiple punishments for the same offense was unripe because he had pled guilty to one offense but had not been tried or convicted of the other offense. State v. Grizzle, 18 Neb. App. 48, 774 N.W.2d 634 (2009).