30 N.W.2d 462 | Neb. | 1948
The defendant by information was charged with the offense of operating a motor vehicle upon the public highways while under the influence of alcoholic liquors; two prior convictions were alleged. He was tried, found guilty, and sentenced to confinement for two years in the penitentiary. He appeals. We reverse the judgment of the trial court.
We first are confronted with the contention of the
Two facts appear: First, that the date of service is indefinite; and, second, that the county attorney when served did not object that the service was without time. The presumption is in favor of the validity of the service. It is sufficient to sustain the bill that it does not appear that the service was not within the time allowed. 4 C. J. S., Appeal and Error, § 881, p. 1385; Bank of Orland v. Finnell, 133 Cal. 475, 65 P. 976.
The evidence of the State briefly summarized is this: Late the afternoon of March 4, 1947, two members of the State Highway Patrol noticed a car being driven north on the highway; it did not maintain its position on the right side of the road, but moved over to the left side and back to the right side several times; they stopped the car; defendant was driving it; they smelled intoxicating liquor on defendant’s breath; defendant was at first happv, jovial, and friendly, and later, after having been arrested, was silent and crying; when defendant got out of the car he was unsteady on his feet, and did not walk in a straight line; defendant told them he had
One of the State’s witnesses, who drove the defendant’s car from the scene, testified that the car had a “play” in the steering wheel, and “You had to be very careful to allow for that play, or you would drift from one side of the road to the other.”
The State offered the records of two previous convictions, and they were received in evidence.
The defendant’s evidence is that on the day in question, he had been at home, had gone downtown in the afternoon to buy some bread, had had a glass of beer, driven home, and was on his way to get his son at a sand pit when he was arrested. Witnesses who saw him a short time before the event testified that he was not then under the influence of intoxicating liquors. The evidence also discloses that he was under a doctor’s care and had been taking medicine the day in question. A qualified physician testified that on March 12, 1947, he examined defendant; that he had high blood pressure; that it would produce symptoms of dizziness and lack of coordination. Defendant testified that as a result of an old fracture of both legs he wobbled when starting to walk after sitting awhile.
Defendant also offered evidence as to the operation of the car. Defendant offered a witness who testified that he was acquainted with the mechanical apparatus of cars and had worked on them; that on the Sunday following the incident he took the steering apparatus apart. He then was asked if he made “any discoveries.” Objection was made that the time was too remote. The court sustained the objection. He then testified that the car was in the same shape as it was on the day of the arrest; and that there had been no mechanical work done on the car between March 4th and the following Sunday, when he did the work on the car. He next-was asked what he discovered when he took the apparatus apart. The court on its own motion inter
The defendant’s first assignment of error argued is that the evidence is insufficient to sustain a conviction. We think the evidence sufficient to go to the jury, and, if believed, sufficient to sustain a conviction as to the offense charged on the day in question. The rule is: “This court will not interfere with a verdict of guilty in a criminal case which is based upon conflicting evidence unless it is so lacking in probative force that we can say as a matter of law that it is insufficient to support a finding of guilt beyond a reasonable doubt.” Severin v. State, 146 Neb. 506, 20 N. W. 2d 377.
The question then comes: Was prejudicial error committed in the trial of the cause?
It is to be noted that one of the circumstances relied upon by the State to assist in establishing guilt is the evidence that the car driven by defendant was going from one side of the road to the other as it moved forward. It was that circumstance that first directed the attention of the patrolmen to the car. It is the theory of the State that the movement of the car was the result of the claimed drunken condition of the driver. It is the theory of the defense that it was caused by the mechanical condition of the car. Evidence was admitted tending to show that the car “shimmied,” and that there was play in the steering wheel which required a driver to be “very careful” or the car would drift from one side of the road to the other. With the evidence in this situation, defendant offered to prove that the bushings in the steering apparatus were worn and that the defective bushings were the cause of the operating con
The State’s position is that the evidence was collateral. We do not agree. The evidence before the jury was to the effect that the car drifted from side to side on the highway. The evidence offered by the defendant went to the question of the cause. To deny the defendant the right to show a cause of the operating condition contrary to the theory as to the cause advanced by the State was prejudicial error.
The defendant complains of the giving of instruction No. 4 as to reasonable doubt. This is substantially the instruction which, in Bennett v. State, 111 Neb. 552, 196 N. W. 905, was held not to be prejudicially erroneous. That decision disposes of this assignment.
The defendant in various ways complains of the giving of instruction No. 3. It is as follows: “If the State has proven by the evidence beyond a reasonable doubt that Fred Haffke, the defendant herein, did willfully and unlawfully operate a motor vehicle upon the public highway of Sarpy County, Nebraska, while under the influence of alcoholic liquor, and you further find from the evidence that he has twice previously convicted for operating a motor vehicle while under the influence of alcoholic liquor, to-wit:
In the District Court of Cass County, Nebraska, on the 13th day of December, 1934; affirmed by the Supreme Court of Nebraska in 1935, and, in the County Court of Cass County, Nebraska, on the 22nd day of July, 1940,
then you should find the defendant guilty as charged in the information.
“However, if the State has failed to prove each and all of the above elements as above stated beyond a reasonable doubt, then it would be your duty to find the defendant not guilty.”
The defendant charges that it is erroneous in that
The statute involved is section 39-727, R. S. 1943. It provides: “It shall be unlawful for any person to operate any motor vehicle while under the influence of alcoholic liquor or of any drug. Any person who shall operate any motor vehicle while under the influence of alcoholic liquor or of any drug shall be deemed guilty of a crime, and, upon conviction thereof, shall be punished as follows: * * *.” Following this language the statute specifies the penalties to be assessed for a first, a second, and a third or subsequent offense. The penalties increase in severity in each instance. It is noted -that the statute defines one crime. It provides different penalties within limits upon conviction depending upon whether the person found guilty had previously been convicted of one or more offenses under the statute. Nowhere in the statute is the jury given any function to perform with reference to the penalty. The penalties are in effect habitual criminal penalties limited to the one “crime” defined in the statute. The defendant contends that the instruction gave the jury no choice, and that the jury should have been allowed to decide whether or not the defendant was guilty of “a lesser crime.” The obvious answer is that the statute defines but one crime, that of operating a motor vehicle while under the influence of alcoholic liquor or of any drug.
However, we are not unmindful of our decisions in Wozniak v. State, 103 Neb. 749, 174 N. W. 298, and Osborne v. State, 115 Neb. 65, 211 N. W. 179, wherein under a somewhat similar statute as to penalties, we in effect treated the penalties as elements of the offense, and stated that in the absence of a statute regulating the procedure the fact of a prior conviction must be set forth in the information and established by proper evidence, its sufficiency passed on by the jury, and the
We have also the decision in Burnham v. State, 127 Neb. 370, 255 N. W. 48, wherein section 53-103, Comp. St. 1929, was involved. The effect of the decision is that evidence of the prior conviction was properly to be admitted in evidence and presented a fact for the jury to decide as to whether or not there had been a prior conviction. See, also, Wiese v. State, 138 Neb. 685, 294 N. W. 482.
It now seems to us that as a matter of reasoning the Wozniak and Osborne cases are not applicable here. While it may be argued that section 3288, Comp. St. 1922, and section 53-103, Comp. St. 1929, actually concerned separate offenses, yet there is no doubt but that the statute here involved defines only one crime. It also appears clear to us that when a proper record of a previous conviction has been produced, it then becomes a matter of law for the court to determine, whether or not that record establishes a previous conviction for a violation of a statute. The instruction here involved submits that question of law to the jury.
There is a diversity of opinion respecting the province of court and jury where a charge is made of a
In the absence of a statute placing upon the jury a duty with reference to the penalty (such as section 28-401, R. S. 1943), the penalty to be imposed after conviction of a criminal offense is not for the jury but for the court to determine within the limits fixed by the statute. Ford v. State, 46 Neb. 390, 64 N. W. 1082; Edwards v. State, 69 Neb. 386, 95 N. W. 1038; Ayres v. State, 138 Neb. 604, 294 N. W. 392. “Except as to crimes having an element of motive, criminal intent, or guilty knowledge, evidence of separate and distinct offenses committed by accused is not admissible.” Swogger v. State, 116 Neb. 563, 218 N. W. 416; Henry v. State, 136 Neb. 454, 286 N. W. 338. The reason for these rules and the rules themselves are in conflict with the conclusions announced in the Wozniak, Osborne, Burnham, and Wiese cases.
We accept as sound the reasoning of other courts as herein stated.
“It seems to be the settled law everywhere that the charge and proof of the prior convictions can have nothing to do with the proof and conviction of the offense for which the defendant may be upon trial; that a statement of previous convictions does not change the offense. The jury does not find the person guilty of the previous offenses; they are matters of history and are alleged and proved for the sole purpose of placing the defendant in a class of habitual criminals, and affect the punishment or term of imprisonment to be meted out. * * * Doubtless, the better practice would be to have proof of the previous convictions made to the court, out of the presence of the jury, but the statute of this state does not so provide.” (The opinion recites that the statute required the jhry to find the fact of the previous convictions.) Sammons v. State, 210 Ind. 40, 199 N. E. 555.
“This court has recognized that there is a conflict of authority upon the question in other jurisdictions but has adopted the rule that the prisoner’s rights are better protected if evidence of prior convictions is not introduced in connection with the trial of the crime with which he is charged. Under our practice when he is charged and tried for a crime, his previous record may not be used to influence the jury to convict him of the charged crime. The rule may have some exceptions but we are not concerned with such exceptions in this case. It follows, under our procedure, that an accused is not entitled to a trial on the question of whether he has been convicted of other felonies on other occasions. The question whether a man is a habitual criminal involves only the severity of the penalty.” Hill v. Hudspeth, 161 Kan. 376, 168 P. 2d 922.
“Previous convictions need not be alleged in the indictment, ñor proved upon the trial of the new charge. This to me seems eminently fair to any prisoner. When he is charged and tried for a crime, his previous record may not be used to influence the jury to convict him of that crime. The proof against him is to be the same
“While it is familiar practice to set forth in the indictment the fact of prior conviction of another offense, and to submit to the jury the evidence upon that issue together with that relating to the commission of the crime which the indictment charges, still in its nature it is a distinct issue, and it may appropriately be the subject of separate determination. Provision for a separate, and subsequent, determination of his identity with the former convict has not been regarded as a deprivation of any fundamental right. It was established by statute
Section 23, article IV, of the Constitution, provides for reports to the Legislature of the judges of the Supreme Court of defects in the Constitution and laws. In 1945, the Legislature created the office of Revisor of Statutes, section 49-701, R. S. Supp., 1945, and provided that it shall be his duty “To prepare, prior to each regular session of the Legislature, under the supervision and direction of the Supreme Court, the report of the judges of the Supreme Court as to defects in the Constitution and laws of Nebraska, and to draft in the form of bills proposed legislation to carry out the recommendations contained in the report; * * § 49-702, R. S. Supp., 1945.
While the above statute by its terms applies only to the Habitual Criminal Act, yet it announces rules of practice and procedure that, as a matter of sound public policy, should apply to any statute which imposes the duty upon a court to inflict a greater punishment upon the repetition of an offense.
Accordingly, under section 25, article V, of the Constitution, we promulgate the following rule of practice and procedure in criminal cases hereafter tried in all courts. In the absence of a provision placing upon the jury a duty with reference to the penalty, where punishment is sought under any statute defining one crime
For purposes of clarity we hold that the opinions in Wozniak v. State, supra; Osborne v. State, supra; Burnham v. State, supra; and Wiese v. State, supra, to the extent in conflict herewith are no longer applicable.
We do not deem it necessary to determine the assignments of error as to the failure of the court to give a cautionary instruction; permitting the state to withdraw its rest and in receiving additional evidence for the state; and in permitting the state to endorse additional names of witnesses on the information.
The judgment of the trial court is reversed.
Reversed.