State v. Cole

222 N.W.2d 560 (1974)

192 Neb. 466

STATE of Nebraska, Appellee, v. Robert COLE a/k/a Robert Percy Cole, Appellant.

No. 39393.

Supreme Court of Nebraska.

October 24, 1974.

Frank B. Morrison, Public Defender, Thomas D. Carey, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Marilyn B. Hutchinson, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ.

BOSLAUGH, J.

The defendant was convicted of robbery and sentenced to imprisonment for 12 to 30 years. The crime was a strong arm robbery committed in a restroom of a bowling alley in Omaha, Nebraska. The defendant was apprehended near the scene of the crime and identified as the robber.

The information originally charged only robbery. On the day the trial commenced the State was allowed to add a *561 count that charged the defendant was an habitual criminal. Although there was no service of the amended information on the defendant until the day of the trial, there was no prejudicial error because the amendment did not relate directly to the charge being tried.

The purpose of section 29-1802, R.R. S.1943, is to insure the defendant has a reasonable time in which to prepare his defense. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261. The habitual criminal charge was not heard by the jury and was not presented to the trial court until a week later.

The defendant also complains the State was allowed to prove two previous convictions by certified copies instead of "duly authenticated" copies of the judgment and commitment as provided in section 29-2222, R.R.S.1943.

The previous convictions were in the same court, the District Court for Douglas County. The certified copies of the judgments showed the defendant had been sentenced to 4 years imprisonment for assault with intent to inflict great bodily injury in 1956, and to 15 years imprisonment for rape in 1962.

Where the previous judgment and commitment was in the same court, a certified copy of the judgment and commitment is admissible to prove the previous conviction. See, State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765; State v. Bundy, 181 Neb. 160, 147 N.W.2d 500.

There being no error, the judgment of the District Court is affirmed.

Affirmed.

WHITE, C. J., participating on briefs.