dissenting.
I dissent from the opinion of the court in this case on two basic grounds: First, that there is no appealable order and, second, that any right of appeal possessed by the defendant was waived.
As to the first point, it has always been the law of this state that a sentence is necessary to the right of appeal in a criminal case. Farrington v. State, 116 Neb. 712, 218 N. W. 590; Gartner v. State, 36 Neb. 280, 54 N. W. 516. In the instant case the jury returned a verdict of guilty, a motion for a new trial was filed and overruled, and sentence was suspended as provided by section 29-2218, R. R. S. 1943. In Kennedy v. State, 170 Neb. 193, 101 N. W. 2d 853, we made it clear that a motion for a new trial that is overruled before sentence is imposed in a criminal case is an interlocutory as distinguished from a final appealable order. The majority opinion *523holds that the overruling of a motion for a new trial before sentence and placing a defendant on probation is a final order under section 25-1912, R. S. Supp., 1963. I submit that this creates an exception to our long-established rule and that no logical basis exists for promulgating such exception. ■
As to the second point, the majority rule is: “As a general rule, the voluntary acceptance of a suspended sentence, probation, or parole waives the defendant’s right to appeal.” Annotation, 117 A. L. R. 929. In the instant case defendant’s counsel pleaded ardently for a suspended sentence and probation. The court granted a suspended sentence and fixed the terms of the probation. A copy of the probation order was given to the defendant, who signed a statement appended thereto in which he acknowledged that he knew its provisions and that he knew he was subject to sentence on the verdict of guilty if he violated its terms. He further accepted probation by accepting release from custody in accordance with its provisions.
The request and grant of a suspension of sentence has the effect of suspending all further proceedings in the case. This is effective not only upon the State but upon the defendant as well. The suspension of all proceedings at the request of the defendant implies an admission of the doing of some legal wrong and his probation for rehabilitation purposes, and not punishment. The terms of the probation require that he conduct himself for a limited period of time as all law-abiding and responsible citizens do. The fact that he is subjected to surveillance by a probation officer to see that he complies does not have the effect of changing probation to punishment. I submit that the statement in Brooks v. State, 51 Ariz. 544, 78 P. 2d 498, 117 A. L. R. 925, that, in accepting a choice between the benefits of suspension and contesting the case by appeal, the defendant should not be permitted to change his position and take the benefit of both and, as that court said: “He cannot eat his *524cake and have it too.” Many, many cases support this position which I shall not take the space to cite,
i A contrary rule has developed in some state jurisdictions since the case of Korematsu v. United States, 319 U. S. 432, 63 S. Ct. 1124, 87 L. Ed. 1497. The basis of that decision is the statement from that opinion to the effect that an appeal can be taken notwithstanding probation on the theory that probation is an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline. If this be true, every juvenile delinquent who is placed on probation has received a criminal sentence, a situation which both the courts and Legislature of this state have sought to avoid. The rule adopted by the majority from the Korematsu case is but another instance of coddling of criminals and persons charged with crime by that court which has become so prevalent in recent years.
No basis exists for making an exception to our established rule requiring a final order which includes a sentence before an appeal can be taken to this court in criminal cases. An appeal from a suspended proceeding is an inconsistency of terms. In any event, the request, grant, and acceptance of a suspension of the proceedings by a defendant in accordance with the statute means what the statute says and amounts to a waiver of any further proceedings, including an appeal.