The plaintiff in error was by information in the district court for Colfax county charged with assaulting one Annie Walker, a child nine years of age, with intent, unlawfully and feloniously, to inflict great bodily injury, etc. Upon the filing of the information, to-wit, March 28, 1893, a motion to quash and for the discharge of the accused was interposed, in which the following grounds were in different forms alleged: (1.) No preliminary examination of the accused was had previous to the filing of said information.
It is further shown by the record that on the 22d day of June, 1892, an information was filed by the county attorney, charging the accused with assaulting the said Annie Walker with intent to inflict great bodily injury, etc. The record of each of said informations is preceded by a recital to the effect that a preliminary examination was had before J. W. Brown, a justice of the peace for Colfax county, on the 5th day of February, 1892. It also appears that on the 14th day of March, 1893, there was filed a plea in abatement directed to the last mentioned information, which was on the same day sustained by the court, and the county attorney was thereupon permitted to file the second or amended information, upon which the accused was subsequently tried. It should, however, be mentioned that the record does not contain a transcript of the docket of the examining magistrate, or of the plea in abatement, our only information with respect to either being that imparted by the recitals above mentioned.
1. It is argued that the accused was entitled to be discharged under the provisions of sections 389, 390, and 391, Criminal Code, and that the district court accordingly erred in denying the motion to which reference has been made. Section 389 refers to cases only in which the accused has been committed to jail, and can have no application to the facts of this case, since it is affirmatively shown by the record that the accused had given bail for her appearance before the district court. It was held in Hammond v. State, 39 Neb., 252, that the defendant in a crimi
2. It is conceded by counsel that the plaintiff in error was given ‘ a preliminary hearing, as recited by the record of the district court, upon some charge, presumably that stated in the information, upon which she was subsequently tried. It has been held that objection on the ground that the offense charged in the indictment or information is not the one named in the complaint upon which the accused was held to answer should be made by plea in abatement, and not by means of a motion to quash. (See Cowan v.. State, 22 Neb., 519; Hill v. State, 42 Neb., 503.) It follows that the motion to quash was rightly, overruled.
3. It is argued that there' was no evidence of an intent on-the part of the accused to inflict great bodily injury upon the child named in the information, and that the district, court erred in submitting that question to the jury. In Botsch v. State, 43 Neb., 501, the information contained two counts, the first charging an assault with intent to-murder, and a second charging an assault with intent to inflict great bodily injury. There being no evidence what
4. It is contended that the accused, at the time of the alleged assault, stood in loco parentis to the child named, and that the striking proved was by way of punishment for disobedience and was reasonable and proper for that purpose. The question of the reasonableness of the punishment inflicted was fairly submitted to the jury, and the verdict, upon the record submitted, should not be disturbed.
Affirmed.