*1
substantial. Here the evidence of the State was sub-
and,
believed,
stantial
finding
sufficient
sustain a
guilt beyond
In a
province
criminal case it
this court
credibility
weigh
determine the
witnesses
jus-
evidence. Where there is sufficient evidence to
tify
verdict,
the verdict will not be set
aside
clearly wrong. See,
unless
Davis,
State v.
Suggs,
Neb.
255 N. W. 2d
State v. Von
Affirmed.
appellee,
v. Clarence
appellant.
Hankins,
Gerald B. Douglas, Attorney Paul L. General, and Bernard appellee. Packett, L.
Heard before White, Boslaugh, C. McCown, Clinton, Brodkey, White, JJ.
Per Curiam. obtaining money- convicted The defendant was imprison- pretenses and sentenced false *2 years. defendant, in 3 ment appeal, not sufficient contends the evidence was this to and that his 1943, should have R. R. S. miss under section been sustained. of a loan transaction with
The offense arose out Company on Finance November the Grand Island 18, Larry date the defendant and 1974. On that County, Brand, Nebraska, pany. of Lincoln then residents who were $2,974.96 from finance com- borrowed pledged security and Brand As pickup tractor and a 1973 Chevrolet a 1955 White security principal pickup truck. The for the loan. truck was repos- pickup truck was When company 1975, in the finance dis- sessed security in described covered that truck agreement that the defendant had been wrecked and but different and Brand had exhibited a similar company on of the finance No- truck 18, vember 1974. in the that the truck listed defendant claimed
security agreement repaired before it had been was company, then to the wrecked a shown finance time, had second and denied that a different truck The evidence been used obtain the loan. although partly circumstantial, State, was substan- guilty tial and was sufficient sustain beyond county original complaint in the was filed County, on 1975. court of Hall was A and the defendant warrant was issued February 14, on 1975. A before the court preliminary held on was bound over the District Court. was in on An information filed the District Court was effort made 1975. An unsuccessful serve the information on the defendant Buffalo County. and in A second informa- Sherman tion on filed on which was served June attorney, Schroeder, on David T. the defendant’s July 1, 1975. August 8, 1975,
On defendant’s bond for- feited and a bench issued which was The defendant ar- turned November 1976. Wyoming and returned rested October ap- He Nebraska extradition peared in the 1976. November
The motion to dismiss was filed March The motion and the was overruled April 13, case set for provides every
Section against informed offense shall the in- trial within 6 months from date computation formation from the is filed. Excluded *3 any period delay resulting or is of from the absence periods or other of delay good are for which the court cause.
Under section R. S. R. discharge to to is entitled trial within an absolute period ex- the 6-month periods. cluded upon be followed
charge was considered in v. State 281, 202 N. In W. 2d 604. that case we said that primary upon bring burden the State to an ac- is provided by cused to trial within the time Upon discharge, motion law. the burden is upon prove by preponder- the State to a substantial ance of the or evidence that one more of the ex- periods applicable, cluded if the trial is com- filing infor- menced within 6 months after the of the mation.
In the Alvarez case we further stated that the trial specific findings required to court is make period cause extension and extension attributable such cause. original filed in information was this case
May 30, 1975. The trial did commence until April approximately 13, 1977, months later. 22% custody bench warrant menced, from November until the trial com- 13, 1977, 4 months and 24 days. comply statute, In order to would have had that all but 1 month and 6 May 30, 1975, of the to Novem- 19, 1976, ber prove was excludable. The State failed elapsed that of the time that be- 16% 30, 1975, 13, 1977, tween was exclud- able under section and the trial specific findings court did make toas the cause in accordance with the rule announced in the Alvarez case.
At dismiss, the de- August fendant testified that he inwas August Lincoln Nebraska. orOn about job he went to Iowa where he had a driving Iowa, Colorado, a truck in Wyoming. Wyoming. 1976 he went He further testified that the time he between was re- jail apparently Island, leased from Grand which was March until the middle of about weekly lawyer contact with his Schroeder. He also testified that Schroeder not tell him did required appear he was Hall County 8, that his bond had been re- date; voked on that or that Schroeder intended appearance. withdraw his
There is no evidence which would sustain a the from should be excluded it even if be assumed that the de- fendant was absent from the state and unavailable July 15, 1975, for trial from to November There was evidence that the Company Grand Island Finance of the state out January from around
However, the case was never set for trial at prior April 13, 1977, time and there never a showing motion for a as to continuance with the showing why this as to witness the case could have been tried 10, 1977. ruling record does the the is, therefore,
motion to dismiss. The cause manded to the District Court directions hold new defendant’s dismiss in accordance with the set out in State v. supra. the event District Court finds defendant was trial within the period, periods, 6-month excluded prescribed by judg- section ment shall stand In the affirmed. event District Court period prescribed by
within law, discharged. be shall vacated and the defendant be Reminded with directions. dissenting. respectfully opinion I from the Per dissent Curiam herein. From defendant could found for information, the service of the which was subsequently attorney. appear- served His his ance bond was forfeited and a bench issued. Defendant was extradited Wyoming purposes fugitive
For the of this a during period. opinion ignores that entire this period of time and states that the burden prosecutor that all but 1 month of that was excluded. I
While do not condone of 4 bringing trial, I would sustain the Judge decision of and affirm the the District convic- tion herein.