State v. Stevens
203 N.W.2d 499
Neb.
1973
Check Treatment

STATE OF NEBRASKA, APPELLEE, v. JERRY STEVENS, APPELLANT.

No. 38533

Supreme Court of Nebraska

January 12, 1973

203 N. W. 2d 499

proper examination. The evidence was in conflict as to whether these requirements had been performed and also presented an issue of proximate cause. Since these were questions for the jury, it is unnecessary to consider the record further at this time.

The judgment of the district court ordering a new trial is affirmed.

AFFIRMED.

Charles Ledwith and Claude D. Shokes, for appellant.

Clarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, MCCOWN, NEWTON, and CLINTON, JJ.

SMITH, J.

Defendant in Omaha municipal court was convicted of petit larceny and sentenced to imprisonment for 10 days. On appeal to district court a jury found him guilty, and the court sentenced him to imprisonment for 30 days. Defendant appeals. We are told that he was denied his statutory right to a speedy trial.

The progress of the case in district court was as follows:

May 27, 1971 - Bond approved for appeal to district court.

June 1, 1971 - Request filed by defendant for a jury trial.

July 21, 1971 - Stipulation by counsel to continuance of case to jury panel of August 9.

February 8, 1972 - Motion by defendant to dismiss for denial of speedy trial.

February 9, 1972 - Trial.

An accused who is not brought to trial within 6 months is on timely motion to be discharged. In computation of the 6-month period many time frames are excluded. See, §§ 29-1207, 29-1208, and 29-1209, R. S. Supp., 1972. The State impliedly concedes that the trial in district court occurred after expiration of the 6-month period. It contends, however, that the statute is not applicable to a prosecution on complaint.

Although statutory requirements for a speedy trial expressly refer only to indictments and informations, the references may encompass complaints.

(by implication). See, also, Black‘s Law Dictionary, “Complaint,” p. 356 (4th Ed., 1951). Inclusion of complaints has been our practice over the years, and nothing in the new statute suggests change. See,
;
;
.

The district court erred in overruling defendant‘s motion to dismiss. The judgment is reversed and the cause remanded with directions that defendant be discharged.

REVERSED AND REMANDED WITH DIRECTIONS.

SPENCER, J., dissenting.

I respectfully dissent. As the opinion states, the statute refers only to indictments and informations. I do not agree that the statute was intended to encompass complaints.