129 N.W.2d 117 | Neb. | 1964
The defendant was .charged with unlawfully operating a motor vehicle while under the influence of intoxicating liquor in violation of a statute relating to the operation of motor vehicles. The charge was brought before a justice of the peace of Saunders County. The defendant was found guilty of the offense charged, and was sentenced to pay a fine of $100 and his license to operate a motor vehicle was suspended for 6 months. The defendant appealed to the district court for Saunders County. The case was tried to a jury in the district court, and the jury rendered a verdict of guilty. The defendant filed a motion for hew trial which was overruled. The defendant was sentenced to pay a fine of $100 and costs, and to serve 7 days in the county jail of Saunders County. His motor vehicle operator’s license was revoked for a period of 6 months during which time he was not to drive a motor vehicle, the 6 months to begin after the fine was paid and the sentence served. The defendant appealed.
Kenneth Grossoehme testified that he was a police officer in the city of Wahoo, and was on duty March 7, 1963, from 6 pan., until 6 a.m., March 8, 1963; that he had occasion to contact the. defendant just before midnight; that ■ he stopped the defendant, 2 or 2% miles south of Wahoo; that he first saw the defendant in
Trooper Wolbert, connected with- the Nebraska Safety Patrol, testified that on or about March 9 or 10, 1963,
A chemist who does all kinds of chemical and bacteriological work and had done similar work since 1942, testified that he held permit No. 1 issued by the Nebraska Department of Health; that this permit authorized him to perform chemical tests on blood; that the permit states: “For determining alcoholic content of body fluids,” which would include blood; and that the permit specifies the Haggar method. This witness further testified to an exhibit received in evidence which contained a specimen that he analyzed on March 11, 1963; that when he first saw this specimen it was locked in the refrigerator at the Fremont police station; that the desk sergeant unlocked the refrigerator; that this witness took the specimen of blood out of the refrigerator; and that the exhibit was made up of a glass vial which had been placed in a white envelope, and the envelope- was sealed when it was removed. He took this specimen of blood and placed it in the refrigerator in his laboratory, and the following morning, March 11, 1963, he began an analysis of the specimen to determine the alcoholic content of the blood contained in the vial. He further testified that he performed the Haggar test in doing this. This analysis showed that the blood contained .23 percent alcohol by weight. On cross-examination this witness testified that there was a discrepancy in his records when he said he picked up the specimen at 4:30 p.m., on March 11, 1963, and kept it in a frozen state until his analysis was begun at 8:40 a.m., on March 11, 1963, and completed at 9:55 a.m., on March 11, 1963; and- that the
The defendant testified that he had no trouble driving his car; that when he was picked up he was driving at a rate of speed of 35 to 40 miles an hour; that he does limp a little bit due to the fact that he suffered a broken hip as a result of an automobile accident; and that he was not under the influence of intoxicating liquor at the time he was arrested.
In rebuttal testimony Kenneth Grossoehme testified that he did not have the defendant walk a straight line because the defendant had a bad leg.
Section 39-727, R. S. Supp., 1961, provides in part: “It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor * * *. Any person who shall operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor * * * shall be deemed guilty of a crime and, upon conviction thereof, shall be punished as follows: (1) If such conviction is for a first offense, such person shall be imprisoned in the county jail for not more than three months, or shall be fined one hundred dollars, or both such a fine and imprisonment, and the court shall, as part of the judgment of conviction, order such person not to drive any motor vehicle for any purpose for a period of six months from the date of his final discharge from the county jail, or the date of payment or satisfaction of such fine, whichever is the later, and shall order that the operator’s license of such person be revoked for a like period; * *
Section 39-727.01, R. S. Supp., 1961, provides in part: “In any criminal prosecution for a violation of section 39-727, relating to driving a vehicle while under the influence of intoxicating liquor, or of section 28-403.01 when it is charged that defendant’s unlawful operation of a motor vehicle consisted of the operation of a motor vehicle while under the influence of intoxicating liquor,
The defendant, when arrested, chose to submit to a blood test as provided for in section 39-727.04, R. S. Supp., 1961.
There is no issue raised relating to the competency of the chemist in this case to make the test that he did. He was duly authorized by the Department of Health of the State of Nebraska, by a permit, to make tests to analyze the blood to determine the alcoholic content.
The' defendant’s assignments of error are to the effect that the chemist made an error in his notes, and that the sentence of the trial court was excessive.
Under the circumstances as shown by the evidence, we find no reason to disturb the sentence given the defendant by the trial court. In Uldrich v. State, 162 Neb. 746, 77 N. W. 2d 305, this court said: “The applicable rule is: ‘Where the punishment of an offense created by statute is left to the discretion of - a court, to be exercised- within certain prescribed limits, a sentence imposed within such limits will not be disturbed unless there appears to be an abuse of such discretion.’ Salyers v. State, 159 Neb. 235, 66 N. W. 2d 576.” We find no reason or justification for interfering with the sentence
The testimony relating to the discrepancy in the notes made by the chemist in this case was admitted without objection. The facts relating to' this matter were for the jury to determine. As stated in State v. Wilson, 174 Neb. 86, 115 N. W. 2d 794: “It is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. * * * In a criminal action this court will not interfere with a verdict of guilty based upon conflicting evidence unless the evidence is so lacking in probative force that as a matter of law it is insufficient to support a finding of guilt beyond a reasonable doubt.” See, also, State v. Nichols, 175 Neb. 761, 123 N. W. 2d 860.
Since the above evidence relating to the discrepancy in the notes of the chemist does not go to the principal matter pertaining to the percentage of alcohol in the defendant’s blood at the time of his arrest, and since it was corrected, there is no merit to the defendant’s assignment of error relating to this subject.
For the reasons given in this opinion, the judgment of the trial court is affirmed.
Affirmed.