§ 29-506 — Probable cause finding; effect; accused to be committed or released on bail; conditions; appearance bond

Nebraska § 29-506

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

If upon the whole examination, it shall appear that no offense has been committed or that there is no probable cause for holding the accused to answer for the offense, he shall be discharged; but if it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he is discharged by due course of law; Provided, if the offense be bailable, the accused may be released pursuant to Chapter 29, article 9, such release to be conditioned on his appearance before the district court as ordered. When a defendant has executed an appearance bond and made a deposit with the court pursuant to section 29-901 , and such appearance bond is continued in force for the defendant's appearance in district court, the appearance bond costs shall be retained by the examining court, and the appearance bond and the balance of the deposit shall be transmitted to the district court.

Legislative History

Source: G.S.1873, c. 58, §§ 302, 303, p. 793; Laws 1905, c. 206, § 1, p. 699; R.S.1913, § 8957; Laws 1915, c. 162, § 1, p. 333; C.S.1922, § 9981; C.S.1929, § 29-506; R.S.1943, § 29-506; Laws 1975, LB 284, § 1. Cross References: Bail, conditions, see sections 29-901 to 29-910. Annotations: 1. Preliminary hearing 2. Bail 3. Miscellaneous 1. Preliminary hearing So long as the charge in an amended information is substantially the same as that in the original information, the original preliminary hearing remains effective as to the amended information. State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998). Hereafter the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the district court. Kruger v. Brainard, 183 Neb. 455, 161 N.W.2d 520 (1968). A preliminary hearing before a magistrate is not a criminal prosecution or trial. Delay v. Brainard, 182 Neb. 509, 156 N.W.2d 14 (1968). A preliminary hearing is a procedural safeguard to prevent persons from being detained in custody without probable cause. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965). Preliminary hearing is in no sense a trial of the person accused in regard to his guilt or innocence. Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240 (1958). A finding in a preliminary hearing that there was a possibility that defendant committed the crime charged was not subject to attack by habeas corpus. Cotner v. Solomon, 163 Neb. 619, 80 N.W.2d 587 (1957). Functional purpose of preliminary hearing is stated. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955). The holding of an accused person for trial in district court at the conclusion of a preliminary examination gives the court jurisdiction, which is retained until the accused is discharged by due course of law. Dobrusky v. State, 140 Neb. 360, 299 N.W. 360 (1941). Evidence on preliminary hearing was sufficient to show probable cause. Harmer v. State, 121 Neb. 731, 238 N.W. 356 (1931). Objection that a preliminary hearing in the form and substance contemplated by the statute had not been held was properly raised by a plea in abatement. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903). An examination under statute is not a trial or a bar to another examination before another magistrate. In re Garst, 10 Neb. 78, 4 N.W. 511 (1880). Only purpose of preliminary hearing is to determine whether a crime has been committed, and whether there is probable cause for holding accused to answer. Sigler v. Bird, 354 F.2d 694 (8th Cir. 1966). At preliminary hearing, magistrate is not authorized to require a defendant to plead guilty or not guilty. Bird v. Sigler, 241 F.Supp. 1007 (D. Neb. 1964). A preliminary hearing in Nebraska is in no sense a trial of the person accused. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964). 2. Bail Bail bond on recognizance should be construed with reasonable strictness. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966). Fact that bail for appearance of defendant in district court required him to appear on first day of first term instead of "forthwith," was not prejudicial error. Paige v. State, 120 Neb. 732, 235 N.W. 91 (1931). Persons bound or held over to district court at next term on criminal charges should be bound or held over to appear at "the first day of the next jury term" of such court. Harrison v. Cheney, 105 Neb. 821, 182 N.W. 367 (1921). Surety was liable in suit for forfeiture of bail bond where defendant was charged with violation of National Prohibition Act, and bond was adjudged forfeited before act was repealed. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935). Recognizance was construed as requiring appearance forthwith at term then in session. United States v. Mace, 281 F. 635 (8th Cir. 1922). 3. Miscellaneous A county judge sitting as an examining magistrate has no jurisdiction to dismiss a felony complaint with prejudice. State v. Wilkinson, 219 Neb. 685, 365 N.W.2d 478 (1985). Sufficiency of evidence to bind accused over may be tested in habeas corpus proceeding. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254 (1958). Court has no authority to appoint special bailiff to have custody of witness. Shaw v. Holt County, 88 Neb. 348, 129 N.W. 552 (1911).