This case comes here under the provisions of section 29-2314, R. R. S. 1943, on a bill of exceptions taken by the county attorney of Otoe County. The court appointed John F. Kerrigan to argue the case against the county attorney pursuant to the above statute.
Following a preliminary hearing, the defendant was on October 9, 1957, charged in the district court for Otoe County in that he did “unlawfully, wilfully, maliciously, feloniously and forcibly break and enter into a warehouse occupied by the Gangel Oil Company, with the intent of him the said Duane L. Furstenau, then and there to steal property of value contained in said building.”
On November 8, 1957, there was filed in the district court for Dodge County an information charging that defendant did “willfully and maliciously in the night season enter a warehouse building occupied by Gangel Oil Company in Nebraska City, Otoe County, Nebraska, and did then and there steal property of value, to wit: 150 tires, and did then and there forthwith transport said tires into the County of Dodge and State of Nebraska, and did then and there conceal them and convert them to his own use in accordance with a conspiracy entered into with Raymond LeRoy Clark and Jack Smith.”
On the same day “In the District Court of Dodge County” according to the journal entry, defendant appeared, “being charged by amended information with the crime of Feloniously Entering Building,” and entered a plea of guilty to the amended information and to the crime charged therein. The court found the defendant guilty of the “crime of feloniously entering building, 28-533” and took under advisement the matter of sentence. The defendant, then, in the Otoe County pro *441 ceeding, entered a plea in bar wherein he alleged that in Dodge County on November 8, 1957, he “was found guilty on an amended information charging him with, violation of Section 28-533 of the Revised Statutes of Nebraska for 1943 as amended as appears in certified copy of said information and journal entry thereon which is attached hereto and made part hereof by reference the same as if fully set forth herein. That the offense with which this defendant is here charged is included within the information of which this defendant has been charged and convicted in Dodge County, Nebraska.”
The State answered and, among other allegations, alleged “That the District Court of Dodge County, Nebraska was without jurisdiction to enter such judgment.”
The trial court sustained the plea in bar and discharged the defendant.
The State assigns error in the ruling.
We sustain the assignment for the reasons here given.
Defendant admits participating in the planning of the crime; that he secured the truck by which the stolen goods were transported from Otoe County to Dodge County; and that he there assisted in concealing and selling part of the stolen property in Dodge County. He contends, however, that he was not in Otoe County and had no participation in the offense there committed. It is the State’s contention the prosecution may be had in Otoe County under the aiding and abetting statute, section 28-201, R. R. S. 1943.
We do not find these contentions material to the decision here, but state them as a background to the question here presented.
We think it patent that the finding of guilt entered in the district court for Dodge County was directed to and involved only the offense charged as having occurred in Otoe County. The defendant so construed it in his plea in bar above quoted.
*442 The question then arises: Did the district court for Dodge County have jurisdiction of that offense?
The 1866 Constitution provided for the creation of district courts, and in Article IV, section 3, provided in- part: “* * * the supreme and district courts shall have both chancery and common law jurisdiction”; and in section 4, “The jurisdiction of the several courts herein provided for both appellate and original shall be fixed by law: * * The present constitutional provision is: “The district courts shall have both chancery and common law jurisdiction, and such other jurisdiction as the legislature may provide; * * Art. V, § 9, Constitution of Nebraska.
Article I, section 7, of the 1866 Constitution provided in part: “In all criminal prosecutions and in cases involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial by an impartial jury; * * *.” Article I, section 11, of the 1875 Constitution contained an amended provision that: “In all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”
We set out the reasons for this change in State v. Crinklaw,
It would appear that Dodge v. People,
*443 We now refer to our decisions, bearing in mind that many of them were written by a court cognizant, through its own experiences, with the development of the constitutional and statutory provisions here involved.
In Dodge v. People, supra, we held: “At common law in general, offenses could be inquired into as well as tried, only in the county where they were committed. * * * Yet there were many exceptions to- the rule. * * * Section four hundred and fifty-five of the criminal code provides, that all offenses shall be tried in the county in which they are committed, unless for cause the venue is changed.”
By the Criminal Code enacted in 1873 it was provided: “All criminal cases shall be tried in the county where the offense was committed, unless it shall appear to the court by affidavits that a fair and impartial trial cannot be had therein; in which case the court may direct the person accused to be tried in some adjoining county.” § 455, G. S. 1873.
The above language has remained unchanged in the statutes except for amendments enacted in 1957 which are not material here. See, §§ 29-1301 to 29-1301.03, R. S. Supp., 1957.
We are mindful of the provisions of section 24-302, R. R. S. 1943, that: “The district courts, shall have and exercise general, original and appellate jurisdiction in all matters, both civil and criminal, except where otherwise provided.”
Here we are dealing with' a case where jurisdiction is “otherwise provided.”
Olive v. State,
The syllabus is: “A'district court while sitting in' one *444 county has no jurisdiction over crimes committed in other organized counties.”
In Ex parte Crawford,
In McCoy v. State,
The analysis above made of constitutional provisions, statutes, and decisions demonstrates that the jurisdiction of the offense here involved rests in the district court for Otoe County and can only be removed therefrom by change of venue in the statutory method.
But defendant contends that the rights here involved are privileges personal to him and can be waived. He relies on the rule last stated in Lingo v. Hann,
The defendant overlooks the fact that we are here dealing with the jurisdiction of the court over the sub
*445
ject matter. The law alone confers jurisdiction of the subject matter. Michaelson v. Beemer,
But defendant, contending that the rule of waiver relates to all rights guaranteed by the constitutional provision, relies on some of our decisions which he contends apply the rule of waiver to matters of jurisdiction to try crimes in counties other than the one where the offense was committed. We accordingly review our cases as to that matter.
In Gandy v. State,
The result of the holding is that the jurisdiction of the subject matter is in the court of the county where the offense was committed. That court has the power to order a change of venue but none other. The effect of the decision is to hold that a defendant cannot waive the venue provided by statute nor select the court where he is to be tried.
In State v. Crinklaw, supra, it was held that the right of trial in the county where the offense was committed was a personal privilege and could be waived by the accused and was held to have been waived by an application for a change of venue. It is material to note, however, that in this case the court where the offense was committed had jurisdiction of the subject matter *446 and the person of the defendant. The waiver was had by a statutory proceeding from the court that had jurisdiction of the subject matter to another court for trial.
In McCarty v. Hopkins,
In Kennison v. State,
The constitutional provisions herein discussed, the statutes, and our decisions, all lead to these conclusions.
The provision of section 29-1301, R. R. S. 1943, pro *447 viding that “all criminal cases shall be tried in the county where the offense was committed unless * * *” relates to the jurisdiction of the court over the subject matter of the offense.
Before any other district court for any county of the state has jurisdiction to try a criminal case, the court for the county where the offense was committed must first secure jurisdiction of the subject matter by proper charges filed therein. Trial in any other county must have that foundation as a basis of jurisdiction of the cause.
This conclusion is sustained by our holding in Poulsom v. State,
It is sustained likewise by the provisions of section 29-1602, R. R. S. 1943, that: “All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant.”
This statute does not authorize an information to be filed in the district court for any county in the state by any county attorney who elects to do so.
Our conclusion is further sustained by the provision of section 23-1201, R. S. Supp., 1957, which makes it the duty of the county attorney to appear, prosecute, or defend, on behalf of the county or state, all suits, applications, or motions, civil or criminal, which may have been transferred by change of venue from his county to any other county in the state.
It is further sustained by the provisions of section 29-1302, R. R. S. 1943, providing that when a change of venue is had, the clerk of the court shall make a certified transcript of the proceedings, which together with the original indictment shall be transmitted to the clerk of the court to which the venue is changed, and the trial *448 shall be conducted in all respects as if the offender had been indicted in the county to which the venue has been changed.
We had this statute before us in Barr v. State,
Our conclusion is further sustained by the provision for the payment of costs “by the county in which the indictment was found” as provided in section 29-1302, R. R. S. 1943, and by the provisions in sections 29-1303 and 29-1304, R. R. S. 1943, providing upon a change of venue for the transfer of a prisoner to the jail of the county where he is to be tried and for the recognizance of witnesses to appear before the court in which the prisoner is to be tried.
Section 29-1307, R. R. S. 1943, provides: “Whenever any person shall be liable to prosecution as the receiver of any personal property that shall have been feloniously stolen, taken or embezzled, he may be indicted in any county where he received or had such property, notwithstanding the theft was committed in another county.”
Obviously this does not authorize the prosecution under section 28-533, R. R. S. 1943, in another county than that where the crime was committed, except on a change of venue.
It follows that the charges in Dodge County of an *449 offense committed in Otoe County under the circumstances here did not confer jurisdiction on the district court for Dodge County to try the cause here involved.
The exception of the county attorney herein discussed is, sustained.
All costs are taxed to Otoe County.
Exceptions sustained.