Summary
In Gilman, supra, the Nebraska Supreme Court found that a defendant waived the right to challenge an unverified complaint by not raising the issue until after the verdict.
Summary of this case from State v. SchroederOpinion
No. 36406.
Filed February 24, 1967.
1. Criminal Law. An accused who pleads the general issue without questioning a defective verification of the charge waives the defect. 2. ___. The action of the district court in imposing sentence and denying probation in a criminal prosecution will not be disturbed on appeal unless the record shows an abuse of discretion.
Appeal from the district court for Lancaster County: ELMER M. SCHEELE, Judge. Affirmed.
No appearance for appellant.
Clarence A. H. Meyer, Attorney General, and Homer G. Hamilton, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
Defendant was charged with operating a motor vehicle after suspension of his operator's license without reinstatement, second offense. An appeal having been taken to the district court, a jury found him guilty. The court determined that the violation was a second offense, and it imposed sentence. Defendant contends on appeal that the court erred in overruling a motion in arrest of judgment and in denying probation.
The complaint was unverified, but defendant first raised the question by the motion after verdict. A defective verification is subject to a motion to quash or a plea in abatement. A defendant who pleads the general issue without raising the question, however, waives the defect. See, 29-610, 29-1808, 29-1812, 29-2104, and 29-2105, R.R.S. 1943; State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5; Morrow v. State, 140 Neb. 592, 300 N.W. 843; Davis v. State, 31 Neb. 247, 47 N.W. 854. Overruling defendant's motion was correct.
The action of the district court in imposing sentence and denying probation will not be disturbed on appeal unless the record shows an abuse of discretion. State v. Steinhausen, 180 Neb. 778, 145 N.W.2d 584. The sentence in the present case was clearly within judicial discretion.
The judgment is affirmed.
AFFIRMED.