29-1802 Indictment; recording; service of copy on defendant; arraignment, when had. - Nebraska Statutes

29-1802. Indictment; recording; service of copy on defendant; arraignment, when had.The clerk of the district court shall, upon the filing of any indictment with him, and after the person indicted is in custody or let to bail, cause the same to be entered of record on the journal of the court; and in case of the loss of the original, such record or a certified copy thereof shall be used in place thereof upon the trial of the cause. Within twenty-four hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff, the defendant or his counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant. 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. SourceG.S.1873, c. 58, § 436, p. 821; Laws 1877, § 1, p. 4; R.S.1913, § 9080; C.S.1922, § 10104; C.S.1929, § 29-1802; R.S.1943, § 29-1802.Annotations1. Right to receive copy2. Service of copy3. Waiver1. Right to receive copyThe defendant's right to a copy of information is not violated, where, although copy of amended information was not served on defendant, the case was tried on the original information as to which a copy was served. Hoctor v. State, 141 Neb. 329, 3 N.W.2d 558 (1942).Accused is not entitled to additional copy merely because, with his knowledge, additional names are properly endorsed on information or because of amendment in immaterial respect. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).Rule applies also to amended information. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).State is required to furnish defendant with but one copy of information. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).Right to copy and one day thereafter to prepare for trial is a substantial right; denial thereof is error, but right may be waived. Barker v. State, 54 Neb. 53, 74 N.W. 427 (1898).This section applies to copy of information as well as indictment. Hawk v. Olson, 326 U.S. 271 (1945), reversing Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181 (1944).2. Service of copyThis statute specifically allows counsel to be served. State v. Henn, 223 Neb. 280, 388 N.W.2d 846 (1986).The requirement that one day shall elapse between service of an information and arraignment relates to the charge which is to be tried and not to a charge that defendant is an habitual criminal. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).Purpose of service of copy of information is to insure defendant a reasonable time in which to prepare his defense. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).Defendant cannot be put on trial until at least one day shall have elapsed after he has received copy of information. Darlington v. State, 153 Neb. 274, 44 N.W.2d 468 (1950).This section provides for the service of indictment upon the accused. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).3. WaiverThe failure of the record to show that the defendant made any objection to proceed with the trial on the charge raises the presumption that he or she waived the right under this section. State v. High, 225 Neb. 695, 407 N.W.2d 772 (1987).Where amended information was properly filed and served, prior defects in original information and service thereof were not prejudicial. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).Requirements of this section may be waived. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).Right not to be required to plead to indictment or information, until one day shall have elapsed after receiving copy of same, may be waived. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).Defendant's right hereunder may be waived; failure of record to show objection raises presumption of waiver. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933).Objection made after trial begins that copy of information had not been served is too late. Foster v. State, 83 Neb. 264, 119 N.W. 475 (1909).