94 Neb. 582 | Neb. | 1913
The defendant, who is plaintiff in error here, was convicted in the district court for Wayne county of the crime of gambling. He asks for a reversal of the judgment upon several grounds.
About a year later, the case having been several times continued because of the absence of Avitnesses for the state, and attorney Berry having withdrawn from the case, this defendant appeared by another attorney, and asked to withdraw his plea of not guilty, and tendered a plea in abatement, which alleged that the court was without jurisdiction because “no preliminary examination has been had as by law provided.” In support of this proposition, it was alleged that the original complaint in the county court charged the defendant with gambling with Earl Moffit and George Ghenther and Sam Miller, and that in the information filed in this court it Avas alleged that Ed Moffett, George Ghenther and Sam Miller were the parties played with. There was no allegation, nor is there any evidence that sIioavs that Earl Moffit and Ed Moffett are íavo different persons. On the other hand, it appears that the same person is intended, and that there had been in the county court a mistake in his name. The trial court refused to allow him to withdraAV his plea for the purpose of taking advantage of this technicality. The case had been pending for a long time and Avas about to be put upon trial. There is no doubt of the right of a defendant in misdemeanor cases to waive such technicality, and it was apparently in his own interest; as Avell as in the interest of the state, that he should do so. We think that the trial court did not abuse his discretion in refusing to allow the withdrawal of the plea for such a purpose.
Sections 214 and 215 of the criminal code were'amended by chapter 108, laws 1887. There was added to section 214 a proviso, “to provide for the recovery of money or other property lost in gambling,” and the argument seems to be that this proviso is unconstitutional. A similar proviso was held to be valid in Perry v. Gross, 25 Neb. 826, and it is not necessary to reconsider the question in this
The judgment of the district court is
Affirmed.