State v. Jackson
218 N.W.2d 430
Neb.
1974
Check Treatment

STATE OF NEBRASKA, APPELLEE, V. CHARLES CALVIN JACKSON, APPELLANT.

No. 39365

Supreme Court of Nebraska

May 23, 1974

218 N. W. 2d 430

set out and contained in the pleadings, the following paper writing set out in defendant‘s answer, to-wit:

‘Received from C. P. Treat $6,532.27, in full settlement of the within contract and in full of all demands. In consideration of said payment already received by me, I hereby release him and also the Fremont, Elkhorn and Missouri Valley R.R. Co., and the Chicago and North-Western Ry. Co., from all claims, actions, or causes of action which have arisen, or may or can arise, to me against any or either of them by reason of any connection I may have had with them heretofore‘: Held, To be a receipt and not a contract.”

Alfred J. Hiller, Defendant‘s sole stockholder, testified that he did not know whether plaintiff had been paid in full. The only thing he knew was that he had a receipt for payment. Plaintiff‘s evidence conclusively establishes that payment had not been made. The judgment of the District Court is affirmed.

AFFIRMED.

Don A. Fitch, for appellant.

Clarence A. H. Meyer, Attorney General, Warren D. Lichty, Jr., and Gary R. Welch, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

SPENCER, J.

Defendant pled guilty to manslaughter on October 12, 1973. He was sentenced the same day to imprisonment for 10 years. He perfected an appeal, alleging three assignments of error. The second assignment alleges the trial court abused its discretion in sentencing the defendant without the benefit of a presentence investigation. We affirm the judgment of conviction, and remand for resentencing.

Defendant was originally charged with first-degree murder but the charge was reduced to second-degree murder upon his agreement to testify for the State in a murder trial against another charged with killing the same individual. Defendant entered a plea of guilty to the reduced charge and a presentence investigation was ordered by the court. The other person was subsequently acquitted. Defendant was then allowed to withdraw his former plea and to enter a plea of guilty to manslaughter. The presentence investigation ordered by the court had not yet been completed. Defendant was sentenced without the benefit of a presentence report. A report was filed several days after the sentence was pronounced.

Section 29-2261, R. S. Supp., 1972, so far as material herein, provides: “(1) Unless it is impractical to do so, when an offender has been convicted of a felony, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation.” (Emphasis supplied.) This provision, which came into our law in 1971, makes it mandatory, unless impractical to do so, to require a written presentence investigation of all felony offenders. This provision was not followed herein. We vacate the sentence and remand the cause for resentencing according to law.

In view of our action herein we do not consider the other assignments of error set out by defendant.

The judgment of conviction is affirmed and the cause is remanded for resentencing in compliance with section 29-2261, R. S. Supp., 1972.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR RESENTENCING.

NEWTON, J., dissenting.

I dissent. Section 29-2261, R. S. Supp., 1972, directs that a presentence investigation be made prior to imposition of sentence on a felony conviction. Although unnecessary in many cases where the court has before it the record of previous felony convictions, I have no quarrel with the procedure prescribed.

The record indicates that defendant participated in the killing of Leonard Scheer. The deceased was hit over the head with a bottle, run over with a car and eight ribs crushed, and left on a wintry road to die of exposure and the injuries inflicted. It is obviously a case of first-degree murder yet the defendant was permitted to escape with a plea of guilty to manslaughter and received a sentence of 10 years.

The presentence report apparently was not completed at the time of defendant‘s plea of guilty to manslaughter and sentence. The record indicates that both the defendant and his attorney were then cognizant of this fact but informed the court that they were ready to proceed. The presentence report itself fails to reveal any extenuating circumstances other than that defendant had lost a leg at some time in the past and was involved with drugs, factors of which the court was apprised prior to sentence. The report, in this in-stance, could not possibly have brought about a lighter or different sentence. It was error without prejudice.

Section 29-2261, R. S. Supp., 1972, must, as are other laws, be administered in the light of section 29-2308, R. R. S. 1943, which forbids reversal when no substantial miscarriage of justice has occurred. As this court has frequently said, error may creep into proceedings in criminal prosecutions but it is only error prejudicial to the accused that justifies reversal. See, ; .