NE Code § 29-1501 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-1501 - Indictment; when sufficient; irregularities.

29-1501.  Indictment; when sufficient; irregularities.No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected (1) by the omission of the words with force and arms, or any words of similar import; (2) by omitting to charge any offense to have been contrary to a statute or statutes; or (3) for the omission of the words as appears by the record nor for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of a statement of the value or price of any matter or thing, or the amount of damages, or injury in any case where the value or price, or the amount of damages or injury is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor that dates and numbers are represented by figures; nor for an omission to allege that the grand jurors were impaneled, sworn or charged; nor for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged; nor for want of the averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.Source   G.S.1873, c. 58, § 412, p. 816;   R.S.1913, § 9050;   C.S.1922, § 10074;   C.S.1929, § 29-1501;   R.S.1943, § 29-1501. Cross References  Underlying offense committed because of a person's status or association with a person of a certain status, inclusion of allegations, see section 28-112.Annotations  1. Sufficiency of indictment 2. Irregularities 3. Miscellaneous 1. Sufficiency of indictment Neither the value of the property stolen nor the time at which it was appropriated are essential elements of the crime of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). An information charging an attempt to commit "robbery" is sufficient though it omits "with intent to steal", and allowing amendment to add those words during trial is not prejudicial error. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982). Permitting amendment as to date of prior felony alleged in information in habitual criminal charge was not error. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974). An amendment adding an omitted allegation of a substantive element of the offense sought to be charged does not change the offense and may be permitted before verdict or findings in the discretion of the district judge. State v. Gascoigen, 191 Neb. 15, 213 N.W.2d 452 (1973). There was no defect or imperfection in indictment which prejudiced the substantial rights of the defendant. State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966). In criminal prosecutions, a variance between an instrument alleged in the information and the evidence offered in proof thereof is not fatal, unless material to the merits of the case or prejudicial to defendant. Balis v. State, 137 Neb. 835, 291 N.W. 477 (1940). In a criminal prosecution for picketing, failure to allege the essential elements of the statutory crime prejudices the substantial rights of the defendant. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939). In prosecution for stealing cattle, it is not necessary to allege or prove the value of the property. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936). Immaterial variance between purported maker's name as it appeared in information and in the forged instrument received in evidence is not prejudicial, especially where defendant testified that it was executed in his presence. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934). Information charging murder in first degree, stating name and authority of qualified informer, setting out elements of offense in simple, concise and direct language following statute and form approved by Supreme Court was sufficient. Hansen v. State, 121 Neb. 169, 236 N.W. 329 (1931). Inaccurate statement in information of exact date of embezzlement does not affect proceedings. Gorton v. State, 117 Neb. 556, 221 N.W. 689 (1928). Information must contain distinct allegation of each essential element of crime as defined by law creating it; must be in language of statute or its equivalent. Knothe v. State, 115 Neb. 119, 211 N.W. 619 (1926). Information alleging all facts or elements necessary to constitute offense described in statute and intended to be punished is sufficient. McKenzie v. State, 113 Neb. 576, 204 N.W. 60 (1925). In an indictment, causal connection between false pretenses and obtaining of note must be positively and explicitly stated. Anthony v. State, 109 Neb. 608, 192 N.W. 206 (1923). It is unnecessary to specify portion of body on which wound is inflicted; words "upon the body" are sufficient. Morris v. State, 109 Neb. 412, 191 N.W. 717 (1922). Where crime may be committed by several methods, indictment may charge commission by all, provided they are not inconsistent or repugnant. Brown v. State, 107 Neb. 120, 185 N.W. 344 (1921). Where statute states elements of crime, it is sufficient to describe such crime in language of statute. Philbrick v. State, 105 Neb. 120, 179 N.W. 398 (1920); Goff v. State, 89 Neb. 287, 131 N.W. 213 (1911). Information fairly and reasonably charging elements of crime of murder is sufficient. Blazka v. State, 105 Neb. 13, 178 N.W. 832 (1920). Where time and place are stated in first count, allegations in subsequent counts that offense was then and there committed, were sufficient. Grier v. State, 81 Neb. 129, 115 N.W. 551 (1908). Indictment must charge explicitly all essentials of the offense. Hase v. State, 74 Neb. 493, 105 N.W. 253 (1905). Word "feloniously" serves no practical purposes where all essential elements of felony are charged. Richards v. State, 65 Neb. 808, 91 N.W. 878 (1902). In an indictment or information for larceny, description of property should enable court to determine that the property is the subject of larceny, and advise accused with reasonable certainty of the property meant. Barnes v. State, 40 Neb. 545, 59 N.W. 125 (1894). Several offenses of same kind for misdemeanor may be joined. Burrell v. State, 25 Neb. 581, 41 N.W. 399 (1889). Indictment for murder must aver purpose to kill. Schaffer v. State, 22 Neb. 557, 35 N.W. 384 (1887). It is not necessary that indictment use exact words of statute; words equivalent in meaning are sufficient. Kirk v. Bowling, 20 Neb. 260, 29 N.W. 928 (1886); Whitman v. State, 17 Neb. 224, 22 N.W. 459 (1885). Indictment was not objectionable for duplicity. Denman v. State, 15 Neb. 138, 17 N.W. 347 (1883). Indictment may contain count for murder in first degree, with one in second degree, and for manslaughter. Baldwin v. State, 12 Neb. 61, 10 N.W. 463 (1881). Where information is in two counts, charging shooting with intent to kill and with intent to wound, state will not be compelled to elect. Candy v. State, 8 Neb. 482, 1 N.W. 454 (1879). Information is not bad by reason of omission of formal conclusion. Smith v. State, 4 Neb. 277 (1876). 2. Irregularities Irregularity in charge of contempt of court was controlled by this section. Cornett v. State, 155 Neb. 766, 53 N.W.2d 543 (1952). Information is not invalidated by allegations that defendant had been convicted of chicken stealing in another state and committed to penitentiary in that state. Wiese v. State, 138 Neb. 685, 294 N.W. 482 (1940). Indictment was not invalidated by unnecessary recitals. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932). Where use of disjunctive does not result in prosecution for distinct or separate crimes, objection thereto cannot be successfully urged on appeal. Smith v. State, 109 Neb. 579, 191 N.W. 687 (1922). It is improper to join misdemeanor and felony where former is not included offense. Longsine v. State, 105 Neb. 428, 181 N.W. 175 (1920). Errors complained of did not tend to prejudice the substantial rights of defendant upon the merits. Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914). 3. Miscellaneous This section is equally applicable to any formal charge on which a prosecution is based, including an indictment, information, or complaint. State v. Wehrle, 223 Neb. 928, 395 N.W.2d 142 (1986). Where crime charged was assault with intent to commit rape by force, allegation in information as to age of complaining witness did not prejudice defendant. Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949). Name of witness to be called on trial need not be endorsed on indictment. Donnelly v. State, 86 Neb. 345, 125 N.W. 618 (1910). State should be compelled to elect on which count it will proceed where two distinct offenses are charged. State v. Lawrence, 19 Neb. 307, 27 N.W. 126 (1886). Time of illegal sale of liquor is only material to bring case within statute of limitations. Brown v. State, 16 Neb. 658, 21 N.W. 454 (1884). Statement of exact time of commission of an offense is not regarded as a substantive element of the charge. Huffman v. Sigler, 352 F.2d 370 (8th Cir. 1965).