*1 257 properly found, that she established, and the court acquiesced, participated in the contract herself but occupied carrying on a residence of the work the out and herself. her husband 209, 102 of Swarts, The case Muenchau permitted plaintiff lien N. 2d the in a mechanic’s W. petition expiration to amend his after the foreclosure 2-year period show his contract was with originally rather as al- subcontractor owner leged. identity of This held that the the cause preserved; action had way it was recover prop- upon of a lien mechanic’s foreclosure the same separate erty items; same and did state a long cause of This court held that: distinct action. “So identity as court can see that the cause allegations preserved, particular peti- is action changed and others added in order to cure tion imperfections stating
and mistakes the manner plaintiff’s Wiley, See, also, case.” J. R. Watkins Co. v. p. 242, 153 2d 871. ante brought judgment of
A presumption supported by correctness, for review party complaining of the and the burden is by of the district court to show action Acceptance Blanco v. General Motors it is erroneous. Corp., dis- here,
Under the circumstances correct and trict court was appellee, v. Jesse Lee Nebraska,
State
153 W. No. 36591. Filed November *2 Hansen, H. for Richard Meyer, Attorney General, Richard
Clarence A. H. appellee. Williams, H. for J., Heard before C. Boslaugh, White, Carter, Spencer, JJ. Newton,
Smith, McCown, J. Carter, proceeding Act, a Post Conviction
This is S'upp., by 29-3004, R. sections 29-3001 which to Lee defendant, Jesse asserts that his years’ imprisonment sentence to for conviction and were, rape invalid and void on constitutional forcible evidentiary hearing, grounds. the trial court After an any insufficient sustain re- to found the evidence appealed. denied. has lief and relief was Defendant charged forcibly raping with one The defendant March 1965. Defendant entered I. Killian June on charge presentence and, to the a investigation, a the trial court sentence im- years. January prisonment 9, 1967, of 6 term amended motion to vacate filed his the defendant primary grounds: First, on two and conviction by from the obtained were that confessions city police department of the of Lincoln member showing fully nature without police de- and, second, that act; member failing pro- partment of misconduct rights of the defendant who was tect alleged mentality. in the shows that the evidence police called at station after he was in- police looking
formed his brother that doing, interrogated police him. After so two rape officers about a series of cases molestation community, including rape had occurred in case subsequently to which he interrogated
first officer who him and obtained his writ- ten confession that he informed the attorney, that he had he did not any questions have to answer unless he wished to do be, anything against so, that he said could used him in gave court, and that written statement he could be *3 given repeated so used. The written statement these he, warnings. He was if asked understood these warn- ings completely and he said he did. He was in asked give the statements he being if wished them after so He, warned and he said he did. read the statements, handwriting, made in signed one correction his own entering plea the confessions. Before guilty,'he his carefully interrogated presence in of the trial rights court as to whether or his not had been adequately protected. properly ascertaining rights that his had
safeguarded, he was if asked he desired rights remaining waive all to him and he said plead guilty. Only did, he that he desired to this after meticulous of the conduct of the case did accept plea guilty. the trial- court by his It is made clear that the defendant record plea his having complete explanation rights, otherwise. It is the. law of plea guilty, understanding^ that if state
voluntarily Decker, 181 conclusive. State v. entered, is complains in which manner He him. claims obtained from written confessions were an at that was entitled to advised he that he was not torney, numer mere fact of that he was coerced kept improperly interrogations, and that food was ous proven and these claims were not from him. While the evidence that can be said that most thereon complaints conflict, were established it even if the nothing. The can avail confessions against him. The defendant under not used as evidence standingly Un entered a circumstances, eliminates der questions all admissibility of evidence. State as to supra; Silvacarvalho, State v. Decker, that It contended defendant was is further average appears to be of less than in- because telligence. The evidence shows that attended school grades. eighth or as the sixth He was 22 as far age hearing. years time conviction having He, his remorse for act. violating shows that he knew that he was very the act from he committed law when man- He stated that he ner its commission. procedure in which was involved. The average defendant had less
mere fact mentality exculpating effect of does him contention is act. No criminal here from his advanced mentality a had such did committing he was crime. The know trial presentence investiga- until court withheld The, made. concluded that tion was defend- *4 mentally competent, capable ant intent, forming unlawful knowing of its well unlawfulness. The trial crime interrogation conclusion careful came to past. Where defendant in a criminal case is shown to have less average intelligence mentally competent but is comparative intelligence, the law, his a matter may determining be considered the trial court in imposed. position sentence question This court is not in judgment situation. freely
We conclude that defendant’s fully pro- made, that his tected, that he understood the of his crime seriousness penalty fairly therefor, and that his case was impartially post handled. We find no basis for con- judgment viction relief of the district dissenting. JJ., McCown, Smith right Violations have occurred counsel hearings arraignment and sentence. Defendant intelligence, degree impairment has defective but the is not We doubt that he clear. waived intelli- gently. See, Zerbst, 304 Johnson v. U. 458, S. S. Ct. Michigan, 1019,82 L. Ed. 146A. 1461, 357; L. R. Moore 78 Ct. U. S. Ed. L. 2d 167. The psychologi- court denied a conviction motion ruling plain cal examination defendant. The error for which the should be reversed. D. Heiman, Enterprises,
Muller (Edward Inc. appellant, therefor), substituted v. Samuel Gerber Advertising appellees. Agency, Inc., et al., 2d 920 Filed November 1967. No. 36613.