*1 given unimpeached, uncontroverted, and is in mat- diagnosis peculiarly ters of medical which are with- range knowledge expert, of the of the the com- pensation diag- court is not free to its own substitute every is nosis. It not true that case uncon- opinion expert binding tested of an is on the trier of testimony fact, where, here, is based on knowledge, credible, firsthand and has no demon- foundation, strable weaknesses or failure of such testimony ignored. cannot We therefore hold Compensation the decision of the Workmen’s denying compensation ap- Mann, Court to William pellant, three-judge clearly wrong judgment and the Compensation

Workmen’s is re- judgment versed and the cause is remanded to enter appellant awarding permanent for the him total and disability.

Reversed and remanded with DIRECTIONS. Douglas Nebraska, appellee,

State E. appellant. Metzger, 319N.W.2d 459 May Filed 1982. No. 81-723. *2 County Keefe, R. Lancaster Public De-

Dennis Dorothy appellant. fender, Walker, A. for City Prosecutor, II, for McQuinn C. Assistant John appellee. Krivosha, C.J.,

Heard before Boslaugh, McCown, JJ. Caporale, Clinton, White, Hastings, Krivosha, C.J. Metzger, appellant, Douglas E. convicted

The was municipal Lincoln, court of the Ne- violating braska, § Lincoln Munici- 9.52.100 of the judgment pal The was affirmed the Dis- Code. County, Nebraska, for Lancaster trict Metzger appealed For reasons has to this court. set below, we reverse and dismiss. out alleged Metzger errors. has raised several There however, is, a threshold which we must ad- dispositive and which is of the entire matter. dress Metzger According evidence, to the lived in a apartment Lincoln, garden-level located in Ne- apartment large A window in the faces a braska. parking lot which is situated on the north side of the building. April apartment At about 7:45 a.m. on apartment, park- 1981, another resident of the while space directly ing Metzger’s in a his automobile front of apartment Metzger window, observed standing his naked with arms at his sides in his period apartment for a of 5 seconds. The window Metzger’s body he saw from resident testified that thighs up. his on police department called the

The resident and two apartment officers arrived at at about 8 a.m. they Metzger officers testified that observed standing eating in front of the window bowl of They Metzger standing cereal. testified that was body, a foot of the window and his from within nude mid-thigh up, on was visible. pertinent portion § 9.52.100 of the Lincoln Municipal Metzger charged, Code, under which provides any as follows: “It shall be unlawful person any within the of Lincoln ... to commit presence indecent, immodest act any person, persons pass- or in such a situation that might ordinarily ing see the same.” Metzger argues nudity, per se, is not obscene *3 guaranteed expression by is a form of free first and fourteenth U.S. amendments Consti- citing tution, Ephraim, 61, v. Schad Mount 452 U.S. (1981). 2176, 101 Ct. 68 L. not, S. Ed. 2d 671 We need however, address that issue in this case. The more presented appeal basic issue the to us this whether vague ordinance, drafted, is so as to be uncon- argu- We believe stitutional. that it is. There is no municipal that a ment violation of the in ordinance question is a criminal act. Since in nature, is criminal it is a fundamental process requirement of due of law that such crimi- reasonably ordinance be nal clear and definite. Brainard, 544, v. 178 Markham Neb. Neb. 134 N.W.2d 84 (1965); Adams, 542, v. 180 State 143 N.W.2d 920 (1966). Moreover, a crime must defined be with suf- ficient definiteness and there must be ascertainable guilt subject to inform standards of those thereto as punish- conduct render to what ment will them liable to thereunder; Huffman, 434, State v. 202 Neb. (1979); Nelson, 394, 838 275 N.W.2d v. 168 State Neb. 596 (1959). dividing line between 678

95 N.W.2d conjec- be left to and unlawful cannot is lawful what ture. supra. supra; Nelson, Adams, State v. State v. charges based be held to answer A citizen cannot penal upon mandates so uncer- statutes whose reasonably they admit of different con- that will tain upon cannot rest an A criminal statute structions. The crime and the elements foundation. uncertain clearly expressed constituting that the it must be so ordinary intelligently person in advance can choose pursue. for him to Penal it is lawful what course doing things prohibiting of certain statutes punishment providing should not for their violation meaning the citizen such a double that admit requirements conception upon of its one act supra. upon A Huffman, v. another. State courts doing of an act terms so which forbids the intelligence must neces- men of common meaning ap- sarily guess and differ as to its as to its plication elements of violates the first essential due Connally Co., Const. 269 process v. General of law. (1925); 385, 126, L. 322 46 S. Ct. Ed. State v. U.S. (1958). 642, Pocras, It is 166 Neb. spreads permissible to enact a law which in effect everybody upon feet net for the an all-inclusive surely that, be while the innocent will en- chance the tangled wrongdoers may meshes, also in its some caught. 76, Adkins, State v. 196 Neb. N.W.2d 655 (1976). English Ruback, 335, 135 Neb. State ex rel. guidelines this court laid down N.W.

281 to determining defining whether a statute assist uncertainty. is void for In Ruback at an offense “ *4 610, ‘The test to at we said: determine 281 N.W. defining an offense is void for un- a statute whether (1) language may apply certainty the is whether not particular only act about which there can be to a opinion, equally difference of to other or no little differences, which there be radical about acts devolving thereby on exercise of the court the arbi- trary power discriminating between the several (2) [Citation omitted.] acts. divid- classes ing between what is lawful what is line unlawful ” conjecture. [Citations omitted.]’ left to cannot be Papachristou Jacksonville, In the case of (1972), 156, 162, 839, 405 U.S. S. 31 L. Ed. Ct. 2d Supreme “Living the U.S. Court said: under a rule suppositions, entails various of law one of which is persons] ‘[all are entitled be informed to as to ” the State what commands forbids.’ Papachristou, supra, Supreme In the U.S. vagrancy

declared statute of the of Jackson- vagueness, saying ville, Florida, invalid for at 165: aspect vagrancy “This ordinance before us is suggested what this Court said 1876 about a by Congress: broad criminal enacted ‘It certainly dangerous legislature would if the could large enough possible net set a all catch of- step fenders, and leave it to the courts inside and say rightfully detained, who could be and who should ” large.’ be set at jurisdictions

Several other have which viewed or- general dinances with the same intent in mind have reached similar conclusions. In the case of State v. App. Sanders, 37 N.C. 245 S.E.2d 397 Appeals presented South Carolina Court of with making it a a statute misdemeanor for members of opposite occupy the hotel sex to the same bedroom aat “any purpose.” finding immoral comply too and indefinite to with process standards, constitutional due the court said 55, at 398: “A at S.E.2d criminal statute or or- sufficiently dinance must be definite to inform citi- intelligence particular zens of common acts [Citation omitted.] forbidden. G.S. precision exactly 14-186fails to define with sufficient ‘any purpose’ term what immoral encom- equivalent pass. word immoral to *5 598 illegal; hence,

word enforcement of G.S. 14-186 legal which, nevertheless, involve acts are immoral many necessarily in the view of citizens. One must speculate, therefore, as to what acts are immoral. legislative proscribe If the illicit sexual intent of G.S. 14-186is to spe-

intercourse the statute could have cifically provided.” (Emphasis original.) so in inAnd the case of Sanchez, Detroit v. 18 of (1969), App. 399, Michigan 171 Mich. Court of N.W.2d 452 Appeals was asked to determine whether an prohibiting ogling, insulting, annoying, ordinance following, pursuing any person any public

or holding street dinance was overbroad. the or Michigan void, court, 401-02, said at 171 compelled N.W.2d at 453: “We are to decide thus provision because this of the ordinance is unconstitu tionally vague. By ‘vague’ we do not mean here vagueness Supreme sort of that referred to Michigan People v. Austin [3 841], is, N.W.2d Mich that that the ordinance put require in terms is gence application. men of common intelli guess meaning

to as to its and differ as to its vagueness

The which invalidates this coverage ordinance than is its over-breadth rather imprecise terminology phraseology. or sustained, conviction cannot be because the ordi culpable nance makes criminal innocent as well See, also, conduct.” Sullivan, State v. (Iowa 1980). The ordinance in makes it unlawful anyone any “indecent, commit immodest or way We act.” know of no in which the standards re- quired a criminal' act can be met in broad, those general terms. There be those few who believe persons opposite holding public sex hands in certainly immodest, might more who believe kissing public is immodest. Such acts cannot Certainly many a crime. constitute one could find today’s swimming who would conclude that attire many many pools or found on beaches beside is im- Yet, the fact that it is immodest modest. thereby does requirement illegal,

make it absent some safety, health, related welfare com- munity. dividing line between what is lawful “indecent,” is unlawful in terms of “im- and what “filthy” simply satisfy modest,” or too broad to *6 requirements process. of due Both the constitutional can and unlawful acts be embraced within lawful permitted. That broad definitions. cannot be such One is not able to determine in advance what law- what is unlawful. ful and attempt, opinion, do not in this

We to determine Metzger’s particular actions whether might case unlawful, not be made nor do we intend en- courage may possible Indeed, such behavior. it be governmental using sufficiently that a subdivision language could make an definite mitted such act as com- by Metzger simply unlawful. We do not de- question at cide this time because of our deter- mination that the ordinance is so to be unconstitutional. § We therefore believe that 9.52.100 of the Lincoln Municipal Code must be declared invalid. Because invalid, is therefore declared the con- cannot viction stand. Reversed and dismissed. dissenting. J.,

Boslaugh, question prohibits acts, The ordinance indecent presence acts, any immodest person. Although acts in the

the ordinance be too broad in respects, some it would seem the defendant in this standing case lacks to raise the issue. See 16A Am. (1979). § Jur. 2d Constitutional Law The exhibi- genitals tion of his under the circumstances of this clearly, was, case an indecent act. prohibiting

Statutes and ordinances indecent ex- posure generally I have been held valid. do not sub- “possible” only scribe view that it is that such prohibited or ordinance. conduct See (Reissue 1979). §28-806 Rev. Stat. Neb. join JJ., in this dissent. Hastings, Clinton W. appellee, Callahan, Bodzek, David Marie Harvey Callahan, Callahan, and Marianne appellants. May 1982. No. 43973. Filed *7 appellants. Ray Simmons, P.C., for C. appellee. appearance for

No C.J., White, Heard before Krivosha, Caporale, JJ., D. JJ. Murphy Whitehead, Murphy, D.J. by plaintiff, brought is an action Marie

This personal injuries resulting Bodzek, from an auto- David W. collision with the defendant Calla- mobile liability The defendants admitted denied han. plaintiff injured. jury trial, After granting for the a verdict defendants. returned plaintiff’s trial, for a new the trial motion court irregularities proceed- “that there were found ings prevailing party prevented having plaintiff a fair trial.” The from defendants