§ 29-2025 — Lesser included offense; attempt to commit; form of verdict

Nebraska § 29-2025

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

Upon an indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; and upon an indictment for any offense the jury may find the defendant not guilty of the offense but guilty of an attempt to commit the same, where such an attempt is an offense.

Legislative History

Source: G.S.1873, c. 58, § 487, p. 830; R.S.1913, § 9128; C.S.1922, § 10153; C.S.1929, § 29-2025; R.S.1943, § 29-2025. Annotations: Where under statute attempt to commit defined offense is punishable, instruction on attempt is not erroneous even though defendant is not formally charged with attempt. State v. Ambrose, 192 Neb. 285, 220 N.W.2d 18 (1974). The unlawful operation of a motor vehicle is not necessarily an included offense in prosecution for motor vehicle homicide. Olney v. State, 169 Neb. 717, 100 N.W.2d 838 (1960). Charge of shooting with intent to wound may include lesser offense of assault or assault and battery. Moore v. State, 147 Neb. 390, 23 N.W.2d 552 (1946). It is not error to fail to submit question of accused's guilt of lesser offense where evidence is not such as to warrant such verdict. Davis v. State, 116 Neb. 90, 215 N.W. 785 (1927). Jury may find accused not guilty of offense charged but guilty of attempt to commit same where such attempt is an offense. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927). Provisions of section extend to subsequently created offenses. Mulloy v. State, 58 Neb. 204, 78 N.W. 525 (1890). Verdict of guilty of manslaughter on charge of murder in first degree is valid, though it fails to specifically negative fact that crime was of higher grade. Williams v. State, 6 Neb. 334 (1877).