93 Neb. 242 | Neb. | 1913
The. defendant was arrested upon a charge of assault and battery. He was taken before the county judge of Merrick county, arraigned upon the complaint, and pleaded not guilty. A jury was waived. Evidence ivas adduced by the state and by defendant, and both rested. After this was done, and before any decision, the county attorney moved the court to stop all further proceedings, and to
In the district court an information was filed upon the same charge. The defendant interposed a plea in bar, setting forth specifically all the proceedings before the county judge, and pleading that he had already been placed in jeopardy, and-by operation of law had been discharged and acquitted upon the charge of assault. A demurrer to this plea was filed by the state, which was sustained. The plea in bar was overruled, and a trial was had over his objections. The jury found that the defendant was not guilty of assault with intent to inflict great bodily injury, and found that he was guilty of assault. A motion to set aside that portion of the verdict finding the defendant guilty of assault and a motion in arrest of judgment were filed and overruled, and a fine and costs adjudged against the defendant.
After sentence, defendant also filed a motion to retax the costs, for the reason,that the costs in the district court were made in the effort to convict him of the alleged crime of assault with intent to inflict great bodily injury, while the jury found that the defendant is not guilty upon that charge. This was also overruled.
The defendant assigns error of. the district court in sustaining the demurrer to the plea in bar and in overruling the same, and further complains that the court erred in overruling the motion to retax the costs in the district court.
A like question to that presented in this case was decided at an early day in the history of this state in the case of Thompson v. State, 6 Neb. 102. In that case a person was accused and tried upon the charge of petty larceny. The jury returned a verdict of guilty, and fixed the value of the property stolen at $35. Upon this verdict no judgment was rendered, but the magistrate required the accused to appear before the district court, where he was convicted of grand larceny. A plea of autrefois convict was interposed, which upon demurrer was adjudged insufficient. Upon review this court sustained the district court, for the reason that the magistrate had no jurisdiction to deterznine the question of guilt of a felony, saying: “It should be borne in mind that it is an indispensable requisite to a
The judgment of the district court is affirmed as to the judgment of conviction, but is reversed as to the motion toretax costs, and the cause is remanded for further proceedings.
Judgment accordingly.