117 Neb. 440 | Neb. | 1928
A jury found the defendant guilty of larceny of “property” valued by it at $75. From a judgment and sentence thereon the defendant brings error proceedings. Various errors are assigned. Only one of them needs discussion.
The information served on the accused and to which, when arraigned, he pleaded not guilty consisted of two counts. Count 1, omitting words not in controversy, charged that the defendant “unlawfully and feloniously did steal, take and carry away $75 in money, of the value of $75, the personal property of the United States National Bank, a corporation;” count 2 charged that the defendant, “then and there being the bailee of certain personal property of the United States National Bank, a corporation, and while said property was so held by him, as such bailee, did then and there unlawfully and feloniously convert said property to his own use.”
After the state introduced its evidence and rested, counsel for defendant announced that he would like to take a recess until 2 o’clock to give him time to prepare a motion, and the court, stating that it was near the noon hour, granted the request. When court reconvened the prose
Was the amendment in the circumstances recited such a violation of the constitutional rights of the defendant as to amount to prejudicial error?
Article I of our state Constitution is very properly termed a “Bill of Rights.” Section 11 thereof says, so far as it need be quoted here: “In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel, to demand the nature and cause of accusation, and to have a copy thereof.” Pursuant thereto and to carry it into orderly effect, the legislature has provided that “no one shall be, without his assent, arraigned or called on to answer to any indictment until one day shall have elapsed, after receiving in person or by counsel, or having an opportunity to receive a copy of such indictment as aforesaid.” Comp. St. 1922, sec. 10104. Informations are governed by the same rule as indictments. Comp. St. 1922, sec. 10086.
The prosecution was begun by complaint in the municipal court. The transcript thereof is in the record. It
The defendant was, in the end, tried and convicted on the first count, as that was the only count submitted to the jury. The-verdict says: “We the jury * * * do find the said defendant guilty of larceny and find the value of the property stolen to be seventy-five dollars as charged in the information.” There is nothing in the verdict to show the nature of “the property stolen,” whether money or other property or both. The proofs do not. appear to us to indicate the possibility .of the jury-finding that more than $25 in money had been stolen. This analysis of the verdict shows that the jury cannot be said to have reached their verdict on count 1 of the information as originally drawn. The jury must have been influenced by the amendment.
The defendant, therefore, was not charged in the information in such fashion as to disclose the “nature and cause of accusation” against him and on which his conviction must rest, if at all. “A person accused of a felony must be charged by an information or indictment which
It is sought by the state to avoid the effect of the record made by defendant by the application of our statute that prevents us from setting aside a judgment in any criminal case “for error as to any matter of pleading or procedure,” if after examination of the entire cause we shall consider that no substantial miscarriage of justice has actually occurred. Comp. St. 1922, sec. 10186. We do not regard this as a mere error as to a matter of procedure, but rather as a violation of the constitutional right of the defendant. That right the legislature never intended to take away by the section sought to be invoked. Under section 10186, Comp. St. 1922, the court will not ignore “error as to any matter of pleading or procedure” in a criminal action, when thereby the constitutional rights of the accused conferred by section 11, art. I of the Constitution, have been violated by failure to give him proper notice of the “nature and cause of accusation” against him.
The conclusion which we have reached renders it unnecessary to discuss other matters assigned. The judgment of the district, court is reversed and the cause remanded for a new trial.
Reversed.