NE Code § 29-1809 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-1809 - Plea in abatement; when made.

29-1809.  Plea in abatement; when made.A plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto.Source   G.S.1873, c. 58, § 441, p. 822;   R.S.1913, § 9085;   C.S.1922, § 10110;   C.S.1929, § 29-1808;   R.S.1943, § 29-1809. Annotations  1. When made 2. Procedure 1. When made Hereafter the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the district court. Kruger v. Brainard, 183 Neb. 455, 161 N.W.2d 520 (1968). A plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959). Plea in abatement presenting questions of law only is properly determined by court. Hardin v. State, 92 Neb. 298, 138 N.W. 146 (1912). Objections to empaneling of grand jury may be presented by plea in abatement. If plea is made, and no refusal to rule thereon by trial court is shown, objection is waived. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912). Plea in abatement is proper where there is defect in record shown by extrinsic facts. In case stated, plea is not good. Steiner v. State, 78 Neb. 147, 110 N.W. 723 (1907). Whether preliminary hearing has been had or waived may be determined by interposition of plea in abatement. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905). A plea in abatement based upon the fact that defendant had two preliminary examinations, and that on the first he was held for a lower grade of offense than upon the one which is the basis of the information filed against him is demurrable. Thompson v. State, 61 Neb. 210, 85 N.W. 62 (1901). Matters triable under plea of not guilty cannot be presented by plea in abatement. State v. Bailey, 57 Neb. 204, 77 N.W. 654 (1898). Objections on grounds of variance of information from complaint should be made by plea in abatement. Whitner v. State, 46 Neb. 144, 64 N.W. 704 (1895). 2. Procedure After trial and conviction in the district court, any error in the ruling of the district court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt. State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975). Issue on plea in abatement was properly tried by the court without a jury. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897). Where plea in bar is good, issue raised by it and state's reply must be tried by jury. Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894). Ruling on plea in abatement is not a final order. Gartner v. State, 36 Neb. 280, 54 N.W. 516 (1893). Plea may be signed by prisoner's attorney; if verified by prisoner, it is sufficient. Bohanan v. State, 15 Neb. 209, 18 N.W. 129 (1884). Plea must point out particular cause of illegality. Baldwin v. State, 12 Neb. 61, 10 N.W. 463 (1881). Plea in abatement must state facts and not legal conclusions. Priest v. State, 10 Neb. 393, 6 N.W. 468 (1880). Where allegations of plea in abatement are denied by state, burden of proof is on defendant. Everson v. State, 4 Neb. Unof. 109, 93 N.W. 394 (1903).