NE Code § 29-2308 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2308 - Reduction of sentence; conditions; appellate court; powers.

29-2308.  Reduction of sentence; conditions; appellate court; powers.(1) In all criminal cases that now are or may hereafter be pending in the Court of Appeals or Supreme Court, the appellate court may reduce the sentence rendered by the district court against the accused when in its opinion the sentence is excessive, and it shall be the duty of the appellate court to render such sentence against the accused as in its opinion may be warranted by the evidence. No judgment shall be set aside, new trial granted, or judgment rendered in any criminal case on the grounds of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure if the appellate court, after an examination of the entire cause, considers that no substantial miscarriage of justice has actually occurred.(2) In all criminal cases based on offenses subject to determinate sentencing under subsection (2) of section 29-2204.02, the appellate court may determine that a sentence is excessive because the district court did not provide substantial and compelling reasons for imposing a sentence other than probation.Source   Laws 1887, c. 110, § 1, p. 668;   R.S.1913, § 9179;   Laws 1921, c. 157, § 1, p. 648;   C.S.1922, § 10186;   C.S.1929, § 29-2308;   R.S.1943, § 29-2308;   Laws 1982, LB 722, § 8;   Laws 1991, LB 732, § 79;  Laws 2015, LB605, § 72.  Annotations  1. Scope 2. Reduction of sentence 3. Harmless error 4. Substantial miscarriage of justice 1. Scope Whether an assigned error is prejudicial, requiring reversal, is at issue in every appeal. State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010). When determining whether to impose probation, the trial court must consider the factors set forth in section 29-2260. On appeal, an appellate court must likewise consider section 29-2260 in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to this section or for leniency under section 29-2322. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999). In a nondeath sentence an appellate court will not conduct a de novo review to determine whether a sentence is proportionate and thus appropriate; rather, a sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993). It is the duty of an appellate court to disturb a sentence on appeal which was within the statutory limits only if the sentence imposed was an abuse of judicial discretion. "Judicial abuse of discretion" means that the reasons or rulings of the trial judge are clearly untenable and deny a just result to the defendant. State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993). When a sentence imposed by a court is within statutory limits, an appellate court will not disturb the sentence unless there has been an abuse of discretion. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993). In considering whether or not to reduce a sentence on the grounds of alleged excessiveness, a sentencing judge is required to have only an open mind, not an empty one. State v. Christensen, 213 Neb. 820, 331 N.W.2d 793 (1983). Sentence of eighteen months for attempted robbery affirmed; absent an abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982). Effective sentence of one to two years imprisonment for conviction of manslaughter not excessive. State v. Rice, 198 Neb. 758, 255 N.W.2d 282 (1977). In absence of abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Gillham, 196 Neb. 563, 244 N.W.2d 177 (1976). Were the sentencing herein made concurrent with defendant's present sentence, it would be tantamount to defendant receiving no sentence at all and the court's refusal to do so was not an abuse of discretion. State v. Erving, 193 Neb. 667, 228 N.W.2d 619 (1975). This section is not a directive to reduce a sentence whenever asked, but only where the trial court has abused its judicial discretion and fixed a penalty which is clearly excessive. State v. Orner, 192 Neb. 523, 222 N.W.2d 819 (1974). Where record fails to show factors claimed to require modification of sentence, it will not be modified. State v. Cano, 191 Neb. 709, 217 N.W.2d 480 (1974). The Supreme Court may reduce a sentence which in its opinion is excessive and it is then its duty to render such sentence as the evidence warrants. State v. West, 188 Neb. 579, 198 N.W.2d 204 (1972). When in the opinion of the Supreme Court, a sentence is excessive or not warranted by the evidence, this section contemplates correction on appeal. State v. Etchison, 188 Neb. 134, 195 N.W.2d 498 (1972). A technique for deterrence of crime is scaling of penal sanctions. State v. Keck, 187 Neb. 794, 194 N.W.2d 186 (1972). Unless an abuse of discretion appears, sentence within statutory limits will not be disturbed. State v. Morosin, 187 Neb. 521, 192 N.W.2d 165 (1971). Supreme Court may substitute lower sentence. State v. Leadinghorse, 187 Neb. 386, 191 N.W.2d 440 (1971). The penalty under an amendatory statute enacted before the actual trial, but after commission of the prohibited act, may be applied under this section where the sentence had not become final because an appeal was pending. State v. Goham, 187 Neb. 34, 187 N.W.2d 305 (1971). Supreme Court may reduce sentence when in its opinion the sentence is excessive. State v. Dixon, 186 Neb. 143, 181 N.W.2d 250 (1970); Havlicek v. State, 101 Neb. 782, 165 N.W. 251 (1917). Crime committed was so brutal that maximum penalty was required. State v. Escamilla, 182 Neb. 466, 155 N.W.2d 344 (1968). In absence of bill of exceptions, sentence within statutory limits will not be disturbed. Guedea v. State, 162 Neb. 680, 77 N.W.2d 166 (1956). Sentence imposed within statutory limits will not be disturbed in absence of abuse of discretion. Salyers v. State, 159 Neb. 235, 66 N.W.2d 576 (1954); Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952); Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952). In absence of proper showing of abuse of discretion, Supreme Court will not reduce sentence. Taylor v. State, 159 Neb. 210, 66 N.W.2d 514 (1954). This section is not effective to sustain a conviction where province of jury is prejudicially invaded. Schluter v. State, 151 Neb. 284, 37 N.W.2d 396 (1949). Where an instruction has the effect of infringing upon the right of the jury to judge of the credibility of the witnesses, it is prejudicially erroneous. Wilson v. State, 150 Neb. 436, 34 N.W.2d 880 (1948). Supreme Court cannot substitute itself for jury in determining whether essential elements of offense have been established beyond a reasonable doubt where instruction omits one of such elements. Whitehead v. State, 147 Neb. 797, 25 N.W.2d 45 (1946). An instruction that omits an essential element of offense charged cannot be deemed to come within purview of this section. Hans v. State, 147 Neb. 730, 25 N.W.2d 35 (1946). In prosecution for murder, this section was applied to rulings on admission of evidence, and the giving and refusing of instructions. Bassinger v. State, 142 Neb. 93, 5 N.W.2d 222 (1942). This section does not prevent reversal of a conviction if the defendant did not have a fair trial because of questionable rulings upon the admission or rejection of evidence. Hansen v. State, 141 Neb. 278, 3 N.W.2d 441 (1942). Section applied to conviction for embezzlement. Escher v. State, 140 Neb. 633, 1 N.W.2d 322 (1941). Court was not empowered to reduce sentence on proceedings in error to review denial of motion to withdraw plea of guilty. Bordeau v. State, 125 Neb. 133, 249 N.W. 291 (1933). Where errors are prejudicial, statute is not applicable. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930). Section has no application where province of jury is prejudicially invaded. Kleinschmidt v. State, 116 Neb. 577, 218 N.W. 384 (1928). Supreme Court will not often reduce sentence imposed by trial court, particularly where crime involves great moral turpitude and is one of violence. Peterson v. State, 115 Neb. 302, 212 N.W. 610 (1927). Section does not obviate necessity of alleging in information every material element of alleged offense. Barton v. State, 111 Neb. 673, 197 N.W. 423 (1924). Section should be liberally construed in favor of justice. Cryderman v. State, 101 Neb. 85, 161 N.W. 1045 (1917). It is duty of court under this section to reduce sentence when warranted by evidence; this is in no sense a commutation or an act of clemency. Anderson v. State, 26 Neb. 387, 41 N.W. 951 (1889). 2. Reduction of sentence The Nebraska Supreme Court has the duty to render a reduced sentence against an accused when, in the opinion of the court, it is warranted. State v. McArthur, 230 Neb. 653, 432 N.W.2d 839 (1988). Where a sentence to a term of years and an order to pay a fine are in excess of the statutory limits, the sentence and order are to be modified to fit within the prescribed limits. State v. Haverkamp, 224 Neb. 73, 395 N.W.2d 570 (1986). Where defendant had no other significant criminal record, his prison behavior was exemplary, and facts indicated extended incarceration was not needed to rehabilitate the defendant, the Supreme Court may properly modify the sentence imposed by the district court. State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978). Sentence of five to ten years reduced to two to five years for eighteen-year-old with no criminal record who pleaded guilty on a charge of uttering a forged instrument. State v. Moore, 198 Neb. 317, 252 N.W.2d 617 (1977). This section authorizes reduction of sentence by Supreme Court in capital offenses in addition to provisions of sections 29-2519 to 29-2523. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). A sentence of three to nine years for kicking a four-year-old child was excessive under the facts in this case and was reduced to one to three years. State v. Foutch, 196 Neb. 644, 244 N.W.2d 291 (1976). The Supreme Court is authorized to reduce a sentence and it may render such sentence as in its opinion may be warranted by the evidence. State v. Burkhardt, 194 Neb. 265, 231 N.W.2d 354 (1975). Sentences of one defendant modified to fit apparent purpose of making total less harsh than that of other defendant. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974). Upon consideration of presentence report and other circumstances, sentence of one year for escape consecutive to present term not excessive. State v. Maddox, 190 Neb. 361, 208 N.W.2d 274 (1973). Defendant's sentence of seven years for assault with intent to commit rape was not excessive. State v. Stroh, 189 Neb. 637, 204 N.W.2d 156 (1973). Sentence reduced to five years for first offense as defendant affected by immature thinking and social naivete, with cultural, educational, and pecuniary handicaps in adjusting to adult life, and who had been made trusty by sheriff during confinement in county jail. State v. Thunder Hawk, 188 Neb. 294, 196 N.W.2d 194 (1972). Sentences imposed for petit larceny were not excessive. State v. Curry, 184 Neb. 682, 171 N.W.2d 163 (1969). Cited in reducing sentence where Legislature had reduced penalty during pendency of appeal. State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1969). No abuse of discretion shown where sentence of ten years imposed when statutory range was from three to fifty years. State v. Williams, 183 Neb. 395, 160 N.W.2d 201 (1968). Evidence was insufficient to reduce sentence of trial court. State v. Alvarez, 182 Neb. 358, 154 N.W.2d 746 (1967). Supreme Court has the right to reduce a sentence when in its opinion the sentence is excessive. State v. Paul, 177 Neb. 668, 131 N.W.2d 129 (1964). In absence of bill of exceptions, a sentence imposed within statutory limits will not be reduced. State v. Ohler, 177 Neb. 418, 129 N.W.2d 116 (1964). Mental condition of defendant convicted of murder in the first degree justified Supreme Court in reducing sentence to life imprisonment. State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964). Supreme Court is authorized to reduce sentence when in its opinion the sentence is excessive. State v. Neuman, 175 Neb. 832, 125 N.W.2d 5 (1963). Imposition of jail sentence under Brand Inspection Act was excessive and sentence reduced to payment of fine. Satterfield v. State, 172 Neb. 275, 109 N.W.2d 415 (1961). Sentence imposed of from one to two years in State Reformatory upon conviction of motor vehicle homicide was not excessive. Olney v. State, 169 Neb. 717, 100 N.W.2d 838 (1960). Reduction in sentence from death to life imprisonment was not justified on claimed weakness of evidence as to deliberation and premeditation. Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958). Sentence of seven years for statutory rape was not excessive. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952). Supreme Court has authority to reduce and render such sentence as is warranted by evidence. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951). Seven year sentence on conviction of manslaughter was excessive. Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951). Sentence of six years upon conviction of statutory rape was not excessive. Truman v. State, 153 Neb. 247, 44 N.W.2d 317 (1950). Sentence of three years for malicious destruction of property was not excessive. Pauli v. State, 151 Neb. 385, 37 N.W.2d 717 (1949). Sentence of five years for manslaughter was not excessive. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948). Sentence of seven years on charge of larceny as bailee was not excessive. Yost v. State, 149 Neb. 584, 31 N.W.2d 538 (1948). Sentence of five years for burglary was not excessive. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946). Notwithstanding previous criminal record of accused, sentence to imprisonment for sixteen years was reduced to ten years. Jump v. State, 146 Neb. 501, 20 N.W.2d 375 (1945). Age of defendant warranted reduction in sentence in rape case. Wiedeman v. State, 141 Neb. 579, 4 N.W.2d 566 (1942). Age of defendant, station in life, and previous reputation as a peaceful citizen are factors to be taken into consideration in determining whether sentence of death should be reduced to life imprisonment. Rogers v. State, 141 Neb. 6, 2 N.W.2d 529 (1942). Fifteen year sentence for rape was excessive under the circumstances and reduced to seven years. Haynes v. State, 137 Neb. 69, 288 N.W. 382 (1939). Where defendant was convicted of larceny of property valued at fifty-five dollars, sentence was reduced from five years to three years. Greenough v. State, 136 Neb. 20, 284 N.W. 740 (1939). Where, under the circumstances, the sentence of the trial court is excessive, it will be modified on appeal. Haines v. State, 135 Neb. 433, 281 N.W. 860 (1938). Sentence of thirty days imprisonment in county jail for assault was excessive, and reduced to fine of $25. Schleif v. State, 131 Neb. 875, 270 N.W. 510 (1936). Fine of $500 for selling two bottles of beer without license was excessive, and reduced. Wilson v. State, 130 Neb. 752, 266 N.W. 614 (1936). Sentence on charge of unlawful possession of intoxicating liquor reduced. Fast v. State, 128 Neb. 782, 261 N.W. 176 (1935). Sentence on burglary charge reduced. Bulwan v. State, 127 Neb. 436, 255 N.W. 559 (1934); Barnes v. State, 124 Neb. 826, 248 N.W. 381 (1933). Sentence of ten years on conviction of "shooting with intent to kill," was excessive and reduced to five years because of extenuating circumstances. Lillard v. State, 123 Neb. 838, 244 N.W. 640 (1932). Sentence on charge of receiving stolen property reduced from three to one year. Smith v. State, 123 Neb. 17, 241 N.W. 750 (1932). In prosecution for shooting with intent to kill, sentence reduced from seven years to three years. Swartz v. State, 121 Neb. 696, 238 N.W. 312 (1931). One year in penitentiary for burglary reduced to five months in county jail. Haney v. State, 119 Neb. 862, 228 N.W. 939 (1930). Sentence of ten years for manslaughter by stabbing was reduced to five. Pembrook v. State, 119 Neb. 417, 229 N.W. 271 (1930). Death penalty for murder reduced to life imprisonment. Swartz v. State, 118 Neb. 591, 225 N.W. 766 (1929); Wesley v. State, 112 Neb. 360, 199 N.W. 719 (1924); Muzik v. State, 99 Neb. 496, 156 N.W. 1056 (1916); Hamblin v. State, 81 Neb. 148, 115 N.W. 850 (1908); O'Hearn v. State, 79 Neb. 513, 113 N.W. 130 (1907). Death penalty upheld. Sherman v. State, 118 Neb. 84, 223 N.W. 645 (1929); Carter v. State, 115 Neb. 320, 212 N.W. 614 (1927). Sentence on charge of manslaughter reduced from ten years to five years. Banks v. State, 114 Neb. 33, 206 N.W. 18 (1925); Welter v. State, 114 Neb. 28, 206 N.W. 16 (1925). On charge of manslaughter, sentence was reduced to three years. Howard v. State, 113 Neb. 67, 201 N.W. 968 (1925). Sentence on charge of rape reduced to four years. Fox v. State, 106 Neb. 537, 184 N.W. 68 (1921). Sentence of five years for larceny of forty dollars reduced. Junod v. State, 73 Neb. 208, 102 N.W. 462 (1905). Sentence of seven years on charge of manslaughter reduced to three years. Ford v. State, 71 Neb. 246, 98 N.W. 807 (1904). Sentence of seven years for cattle stealing reduced. Palmer v. State, 70 Neb. 136, 97 N.W. 235 (1903). Life sentence for second degree murder, on indirect and circumstantial evidence, reduced to twenty years. Nelson v. State, 33 Neb. 528, 50 N.W. 679 (1891). Sentence of ten years for burglary reduced. Charles v. State, 27 Neb. 881, 44 N.W. 39 (1889). On charge of rape, sentence of twelve years was reduced to six years. Fager v. State, 22 Neb. 332, 35 N.W. 195 (1887). 3. Harmless error Harmless error analysis undertaken by an appellate court does not violate a defendant's right to a trial by jury. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). Prosecutor's comments in final argument held not to be a reflection on defendant's failure to testify. State v. Donald, 199 Neb. 70, 256 N.W.2d 107 (1977). Since defendant did appeal and had a trial de novo in the district court, the improper attempt by the county judge to chill his right to appeal was harmless error. State v. Goodloe, 196 Neb. 381, 243 N.W.2d 69 (1976). Admission of irrelevant evidence is harmless error unless, when with other evidence properly adduced, it affects substantial rights of the adverse party. State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253 (1976). No substantial miscarriage of justice occurred under facts in this case by overruling motion for mistrial. State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975). No substantial miscarriage of justice occurred, under facts in this case, by erroneous admission of evidence of similar acts. State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975). Even if asking of two questions to which objections were sustained was error, no prejudice was indicated and judgment should not be set aside. State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975). An erroneous instruction in a criminal case is not ground for reversal unless prejudicial to the defendant. State v. Garza, 193 Neb. 283, 226 N.W.2d 768 (1975). Fact that another jury selected from the same jury panel had previously found defendant's companion guilty of the separate and distinct offense did not constitute prejudice to a substantial right of defendant. State v. Harris, 184 Neb. 301, 167 N.W.2d 386 (1969). Valuations placed on property taken in burglary did not prejudice the defendant. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966). Harmless error in a criminal prosecution is not a ground for reversal of judgment of conviction. State v. Burton, 174 Neb. 457, 118 N.W.2d 502 (1962). Error in requiring defendant to answer question as to another offense was not prejudicial. Texter v. State, 170 Neb. 426, 102 N.W.2d 655 (1960). Proof of betting by a prospective juror was not prejudicial to defendant where verdict returned by jury was contrary to juror's bet. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959). Statement on existing constitutional or statutory provisions as to pardons and paroles was not prejudicial error. Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955). Admission of hearsay evidence was harmless error. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955). Misdirection, not causing substantial miscarriage of justice, does not require reversal. Bell v. State, 159 Neb. 474, 67 N.W.2d 762 (1954). Prejudicial error in prosecution for second degree murder was not shown. Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953). Instruction on reasonable doubt was not prejudicial. Owens v. State, 152 Neb. 841, 43 N.W.2d 168 (1950). Where charge to jury, considered as a whole, correctly states the law, the verdict will not be set aside merely because a single instruction is incomplete. Kirkendall v. State, 152 Neb. 691, 42 N.W.2d 374 (1950). In prosecution for abortion resulting in death, the admission in evidence of a dying declaration reduced to writing was not prejudicial error requiring reversal, where written statement added nothing to story recited by witnesses examined at trial. Piercy v. State, 138 Neb. 905, 297 N.W. 137 (1941). Recommendation of leniency by jury does not make sentence imposed by trial court excessive so as to require application of this statute, since penalty is for trial court and not the jury to determine. Ayres v. State, 138 Neb. 604, 294 N.W. 392 (1940). Harmless error does not require a second trial, as the law recognizes the possibility of harmless imperfections and does not defeat itself by exacting absolute perfection. Jurgensen v. State, 135 Neb. 537, 283 N.W. 228 (1939). Unless error complained of was prejudicial to rights of defendant, the cause should not be reversed. Mason v. State, 132 Neb. 7, 270 N.W. 661 (1937); Lovejoy v. State, 130 Neb. 154, 264 N.W. 417 (1936); Dobry v. State, 130 Neb. 51, 263 N.W. 681 (1935). Variance between information and complaint filed in county court did not prejudice defendant. Clarke v. State, 125 Neb. 445, 250 N.W. 551 (1933). Consolidation of two indictments is within discretion of trial court, especially where defendant consents or requests such consolidation. Luke v. State, 123 Neb. 101, 242 N.W. 265 (1932). Instruction given in manslaughter case fell within class of instructions where conviction will not be reversed for nonprejudicial misdirection. Crawford v. State, 116 Neb. 125, 216 N.W. 294 (1927). Defendant, released on bail, may waive right to be present when court gives supplemental instruction to jury, and where no prejudice results, conviction will not be set aside. Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925). Any error occurring in the trial of a criminal case which does not cause a substantial miscarriage of justice should be disregarded. Marchand v. State, 113 Neb. 87, 201 N.W. 890 (1925). Correction in instructions after same have been delivered and jury has retired is not ground for reversal, ordinarily, unless found to be prejudicial to person complaining. Quinton v. State, 112 Neb. 684, 200 N.W. 881 (1924). Conviction of constructive contempt will not be set aside because information was verified on information and belief where objection was not made until after verdict. Tasich v. State, 111 Neb. 465, 196 N.W. 688 (1923). Misconduct of prosecutor was not of such injurious nature as to justify reversal. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923). Where no error appears and sentence is warranted by statute, it will not be reduced because of apparent undue severity. Fanton v. State, 50 Neb. 351, 69 N.W. 953 (1897); Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896). 4. Substantial miscarriage of justice Presence, in view of jury, of evidence which had not yet been received into evidence, but was received later for limited purposes, did not constitute a "substantial miscarriage of justice," such that mistrial would be in order. State v. Valdez, 239 Neb. 453, 476 N.W.2d 814 (1991). Examination of record showed no substantial prejudice to the defendant by trial court's exclusion of certain hearsay testimony. State v. Turner, 221 Neb. 852, 381 N.W.2d 149 (1986). References to previous contradictory statements of witnesses in direct examination and caution in instruction that they went only to credibility caused no substantial miscarriage of justice. State v. Fronning, 186 Neb. 463, 183 N.W.2d 920 (1971). Allowing testimony of witness as to value of property taken under circumstances did not constitute substantial miscarriage of justice. State v. Schumacher, 184 Neb. 653, 171 N.W.2d 181 (1969). Admission of incriminating, inculpatory, and extra-judicial declarations of a co-conspirator after the arrest and after the termination of the conspiracy was prejudicial error. State v. Watson, 182 Neb. 692, 157 N.W.2d 156 (1968). Examination of entire case and record conclusively shows no substantial miscarriage of justice. State v. Riley, 182 Neb. 300, 154 N.W.2d 741 (1967). Error in instruction on credibility of child as witness was not cured. Rakes v. State, 158 Neb. 55, 62 N.W.2d 273 (1954). Supreme Court has privilege within its discretion to examine instructions which appear to be conflicting or confusing, and to determine whether or not error in instructions would result in miscarriage of justice. Planck v. State, 151 Neb. 599, 38 N.W.2d 790 (1949). Where one of essential elements of offense is omitted from instruction, this section will not prevent reversal. Glasgow v. State, 147 Neb. 279, 22 N.W.2d 842 (1946). Where court allows proceedings in absence of defendant, it is substantial invasion of defendant's rights, and is prejudicial error. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940). In cattle stealing case, judgment was sustained because court could not say, after examination of entire record, that substantial miscarriage of justice had occurred. Taylor v. State, 138 Neb. 156, 292 N.W. 233 (1940). The obvious failure of an information to charge an offense as defined in the statute is not a defect of technical procedure, but involves a substantial right. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939). If Supreme Court, in criminal case, after examination of entire cause, shall consider that no substantial miscarriage of justice shall have occurred, it must affirm the judgment. Harrison v. State, 133 Neb. 794, 277 N.W. 96 (1938). Misdirection of jury not causing substantial miscarriage of justice does not require that a judgment be set aside. Lorimer v. State, 127 Neb. 758, 257 N.W. 217 (1934). In contempt proceedings, conviction will not be set aside where no substantial miscarriage of justice has occurred. McCauley v. State, 124 Neb. 102, 245 N.W. 269 (1932). In prosecution for defrauding bank, errors relied upon did not result in substantial miscarriage of justice. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932). This section does not authorize court to declare there has been no substantial miscarriage of justice merely because the court from an examination of the evidence may believe the defendant is guilty. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931). Where no substantial miscarriage of justice occurs, conviction will be affirmed. Norton v. State, 119 Neb. 588, 230 N.W. 438 (1930). Court will not ignore "error as to any matter of pleading or procedure" when the rights of the accused conferred by the Constitution have been violated. Stowe v. State, 117 Neb. 440, 220 N.W. 826 (1928). Instructions in murder case, while not in apt language, did not result in substantial miscarriage of justice. Phegley v. State, 113 Neb. 138, 202 N.W. 419 (1925). Instruction to jury in rape case on reasonable doubt did not cause substantial miscarriage of justice. Bennett v. State, 111 Neb. 552, 196 N.W. 905 (1924).