29-1602 Information; by whom filed and subscribed; names of witnesses; endorsement.
29-1602. Information; by whom filed and subscribed; names of witnesses; endorsement.All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant. The prosecuting attorney shall subscribe his or her name thereto and endorse thereon the names of the witnesses known to him or her at the time of filing. After the information has been filed, the prosecuting attorney shall endorse on the information the names of such other witnesses as shall then be known to him or her as the court in its discretion may prescribe, except that if a notice of aggravation is contained in the information as provided in section 29-1603, the prosecuting attorney may endorse additional witnesses at any time up to and including the thirtieth day prior to the trial of guilt. SourceLaws 1885, c. 108, § 2, p. 397; R.S.1913, § 9063; Laws 1915, c. 164, § 1, p. 335; C.S.1922, § 10087; C.S.1929, § 29-1602; R.S.1943, § 29-1602; Laws 2002, Third Spec. Sess., LB 1, § 4. Annotations1. Information2. Endorsement of witnesses before trial3. Endorsement of witnesses during trial1. InformationThe requirement that the names of the witnesses for the State must be endorsed upon the information has no application to rebuttal witnesses. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).The purpose of this section is to notify the defendant as to witnesses who may testify against him or her and give him or her an opportunity to investigate them. State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).The purpose of this section is to notify the defendant as to witnesses who may testify against him and give him an opportunity to investigate them. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).To obtain a reversal on the grounds the trial court erred in permitting additional endorsements, the defendant must show he was prejudiced by the additional testimony. State v. Ellis, 223 Neb. 779, 393 N.W.2d 719 (1986).The purpose of the requirement contained in this section, that the names of witnesses for the prosecution be listed on the information, is to inform the defendant of the names of persons who will testify against him and give him an opportunity to investigate regarding their background and pertinent knowledge. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).The failure to endorse on the information the names of witnesses called by the state is not grounds for reversal of conviction in absence of prejudice. State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973).Failure to endorse names of witnesses on an information is error, but not necessarily prejudicial error. State v. Adels, 186 Neb. 849, 186 N.W.2d 908 (1971); Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968).Information was properly filed in office of clerk of the district court. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).Informations must be filed in county where crime was committed. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).Prosecution on information is not in violation of state or federal Constitution. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945).While county attorney should file information, defect arising from filing being made by some other person may be waived by failure to move to quash prior to trial. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).Information may be made, signed, verified, and filed by deputy county attorney. Thompson v. O'Grady, 137 Neb. 641, 290 N.W. 716 (1940).Assistant attorney general does not have authority to make and sign information in his own name. Carlsen v. State, 127 Neb. 11, 254 N.W. 744 (1934); Lower v. State, 106 Neb. 666, 184 N.W. 174 (1921).Information may be filed in vacation in court having jurisdiction of offense. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927).Information, signed by proper prosecuting officer, must be filed or indictment by grand jury returned, to give jurisdiction. Langford v. State, 114 Neb. 207, 206 N.W. 756 (1925).In criminal case, it is not essential to validity of information that it show upon face term of court at which filed or that it was filed during term time. Mares v. State, 112 Neb. 619, 200 N.W. 448 (1924).As matter of right, accused is not entitled to additional copy of information because, with his knowledge, additional names endorsed or amendment in immaterial respect made. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).Information can be amended provided the amendment does not change the offense charged. Razee v. State, 73 Neb. 732, 103 N.W. 438 (1905).Court may compel county attorney to elect upon which count he will rely. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).It is unnecessary to obtain leave of court before filing information. Sharp v. State, 61 Neb. 187, 85 N.W. 38 (1901).Defective indictment may be withdrawn and information filed charging same offense. Alderman v. State, 24 Neb. 97, 38 N.W. 36 (1888).Witnesses for the state must be listed on the information. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).2. Endorsement of witnesses before trialPursuant to this section, a trial court may, in the exercise of its discretion, permit the names of additional witnesses to be endorsed upon an information after the information has been filed when doing so does not prejudice the defendant in the preparation of a defense. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).Requirement that names of state's witnesses be endorsed on the information has no application to rebuttal witnesses. State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977).Failure to have names of known witnesses endorsed on information was error but not prejudicial. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959).Endorsing names of witnesses is not required on information charging violation of probation. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).One of purposes of section is to enable defendant's attorney to confer with client and have time to make a good-faith investigation as to facts about witnesses and their connection with case. Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).Where name of witness was endorsed on information before trial but omitted from copy served on defendant, it is not error for witness to testify, in absence of showing of prejudice, and where no continuance was requested at the time. Allen v. State, 129 Neb. 722, 262 N.W. 675 (1935).Trial judge has discretion to permit prosecuting attorney to endorse names of additional witnesses on information before trial and where defendant does not request continuance, his rights are not prejudiced. Wilson v. State, 120 Neb. 468, 233 N.W. 461 (1930).Trial judge, in his discretion, may permit additional witnesses to be endorsed on information, before trial. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923); Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910); Reed v. State, 75 Neb. 509, 106 N.W. 649 (1906); Fager v. State, 49 Neb. 439, 68 N.W. 611 (1896).Where name of witness is omitted from copy of information served on defendant, it is not error to permit witness to testify where prejudice is not shown or continuance or postponement of trial is not asked for. Frey v. State, 109 Neb. 483, 191 N.W. 693 (1922).It is not required that all witnesses whose names are endorsed on information be called. Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914).Endorsement of names on information is sufficient, though misspelled in copy. Rownd v. State, 93 Neb. 427, 140 N.W. 790 (1913).Strictly rebutting testimony may be introduced even though names of witnesses giving it are not endorsed on information. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910); Clements v. State, 80 Neb. 313, 114 N.W. 271 (1907)."Mrs. Fred Steinberg" and "Mrs. Fred Steenburg" are idem sonans; endorsement was sufficient. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).Endorsement of surname of witness, with initials of Christian name, was sufficient compliance. Basye v. State, 45 Neb. 261, 63 N.W. 811 (1895).Witnesses for the state must be listed on the information. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).3. Endorsement of witnesses during trialTrial court's endorsement of additional witness on first day of trial was not an abuse of discretion, as defendant was unable to show how such action prejudiced his trial preparation. State v. Brandon, 240 Neb. 232, 481 N.W.2d 207 (1992).A failure to endorse on the information the names of witnesses to be called by the State is not grounds for reversal of a conviction in the absence of a showing of prejudice. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).In the exercise of its discretion, trial court may permit endorsement of names of witnesses upon information. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).Trial court may, in its discretion, permit names of additional witnesses to be endorsed upon information after trial has begun, and defendant cannot complain of error where no prejudice is shown and he did not ask for continuance. McCartney v. State, 129 Neb. 716, 262 N.W. 679 (1935).It is within discretion of court to permit names of additional witnesses to be endorsed on information after trial has commenced. Barnts v. State, 116 Neb. 363, 217 N.W. 591 (1928); Hutter v. State, 105 Neb. 601, 181 N.W. 552 (1921); Samuels v. State, 101 Neb. 383, 163 N.W. 312 (1917).District court may permit names of additional witnesses to be endorsed on information during progress of trial. Ridings v. State, 108 Neb. 804, 189 N.W. 372 (1922).Endorsement of additional witnesses after trial has begun is not error unless prejudicial and continuance asked for. Brunke v. State, 105 Neb. 343, 180 N.W. 560 (1920); Sheppard v. State, 104 Neb. 709, 178 N.W. 616 (1920); Kemplin v. State, 90 Neb. 655, 134 N.W. 275 (1912).Where rule of court required names to be endorsed within twenty-four hours after discovery, names endorsed later, with permission of court, was not error. Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896).