43 Neb. 860 | Neb. | 1895
On the 5th day of January, 1895, the plaintiff in error applied to the Hon. E. P. Holmes, one of the judges of the district court of Lancaster county, for a writ of habeas corpus, against Fred A. Miller, sheriff of said county. Upon the hearing the application was denied. The petitioner prosecutes error.
It is alleged in the petition, substantially, and by the respondent admitted to be true, that on the 18th day of September, 1894, the relator was arrested upon the charge of grand larceny filed against him in the police court of the city of Lincoln, and, upon a preliminary, examination had before said court, he was required to enter into a recognizance in the sum of $200 for his appearance at the next term of the district court of said county, and in default of bail he was committed to the county jail, where he has ever since been confined; that the first term of said district court held after said preliminary hearing convened on the 24th. day of September, 1894, $nd ended on December 31,1894; that no information has been filed by the county attorney in said court against the relator upon said charge, or for the commission of any other offense. The relator contends that he is entitled to be discharged from imprisonment on the ground that an information was not filed against him' during the September, 1894, .term of the district court of Lancaster county. The proper determination of this ques
*863 “Sec. 581. That the provisions of chapters 40, 41, 42, 43, 44, 45, of the Criminal Code, in relation to indictments, and all other provisions of law applying to prosecutions upon indictments, to writs, and processes therein, and the issuing and service thereof, to motions, pleadings, trials, and punishments, or the execution of any sentence, and to all other proceedings in cases of indictment, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as near as may be, apply to informations, and all prosecutions and proceedings thereon.
“Sec. 583. It shall be the duty of the prosecuting attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case of preliminary examination, as provided by law, touching the commission of any offense wherein the offender shall be committed to jail, or become recognized or held to bail, and if the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe, and file with the clerk of the court a statement in writing, containing his reasons, in” fact and in law, for not filing an information in such case, and that such statement shall be filed at and during the term of court at which the offender shall be held- for his appearance; Provided, That in such case such court may examine said statement, together with the evidence filed in the case, and if, upon such examination, the court shall not be satisfied with said statement, the prosecuting attorney shall be directed by the court to file the proper information, and bring the case to trial.”
It will be observed that section 581, quoted above, makes the provisions of the Criminal Code relating to indictments and prosecutions thereunder applicable, so far as possible, to prosecutions upon informations filed by the county attorney. Construing, therefore, said section 389 and the provisions of said chapter 54 of the Criminal Code to
The opinion in Hammond v. State, 39 Neb., 252, is not in conflict with the conclusion reached herein. In that case section 389 was not under consideration, but sections 390 and 391 of the Criminal Code alone were construed. The point we have been discussing was in no manner involved in the case above mentioned, but the question within what time a defendant who has been indicted, or an information filed against, shall be brought to trial was involved, as the following quotation from the syllabus of the decision will disclose: “1. A defendant in a criminal prosecution, who has never been committed to jail, or otherwise detained in custody, is not entitled to be discharged under the provisions of section 390 of the Criminal Code, on the ground that he has not been brought to trial before the end of the second term after the finding of the indictment or the filing of the information. 2. The provision of section 391 of the Criminal Code, for the discharge of any person indicted who, after having given bail, shall not be brought to trial before the end of the third term of the court held after the finding of such indictment, is held to exclude the term at which the indictment is found.” In this state, as already stated, prosecutions for crimes may be in either of two modes, by indictment presented by a grand jury, or upon information filed by the prosecuting attorney. In case a party is bound over to the district court to answer a criminal offense, and the grand jury, after investigating the
Affirmed.