In an amended information filed in the District Court for Sheridan County, George Mills, the defendant and appellant herein, was charged with uttering a forged bank check under section 28-601, R. R. S. 1943; and with being a habitual criminal under section 29-2221, R. R. S. 1943. Trial commenced on August 16, 1976, before a jury, which found the defendant guilty of uttering a forged bank check. After a separate hearing before the trial court on the charge of being a habitual criminal, as provided for in section 29-2221 (2), R. R. S. 1943, the defendant was found guilty on that charge. Defendant’s motions for new trial on both charges were overruled, and he was sentenced to a term of 10 years imprisonment in the Penal and Correctional Complex pursuant to section 29-2221, R. R. S. 1943. Defendant has now appealed to this court, contending that neither conviction was sustained by sufficient evidence, that his motions to dismiss the charges should have been sustained, and that the trial court erred in over *297 ruling his motions for new trial. We affirm the judgment of the District Court.
The facts relevant to this appeal are as follows. On April 24, 1976, the defendant and several of his acquaintances traveled to Whiteclay, Nebraska. They had been drinking, and the defendant testified that he was intoxicated. They drove to the Jumping Eagle Inn, where the defendant cashed a $30 check, and bought some beer. The check, introduced in evidence as an exhibit, was payable to the order of the defendant, and the drawer was purportedly one Herbert Hauck. Under the drawer’s signature, the word “Lease” was written. A proprietor of the Inn, Mrs. Lillie Norman, cashed the check after the defendant endorsed it in her presence. Mrs. Norman testified the defendant told her that his “leasor” had just given him a check. She also stated that the defendant did not appear to be intoxicated at the time he cashed the check.
An employee of the bank on which the check was drawn testified that Herbert Hauck had no account at that bank. Herbert Hauck, a rancher in the area, testified that he did not write the check, that he had no account in the bank on which it was drawn, that he did not know the defendant prior to the preliminary hearing in this case, and that he does not lease any land from the defendant.
The defendant admitted cashing the check, but testified he did not know that the drawer’s name was forged. He stated that one of his companions in the car, whom he did not know, gave him the check to buy beer, and that he thought the person was Hauck. Defendant also stated that he thought the person who gave him the check went by the name of “Running Hawk,” and that he assumed that the check was good. The defendant admitted that he owns no land which he leases, and could not recall telling Mrs. Norman that he had just acquired the check from his “leasor.”
After the jury returned a verdict of guilty on the *298 charge of uttering a forged bank check, defendant moved for a new trial on various grounds, including the ground of accident or surprise. Defendant’s attorney submitted an affidavit in support of the motion, which is summarized as follows. As part of his preparation for trial, defendant’s counsel engaged an investigator to interview potential witnesses, including Joe Charging, who was one of defendant’s companions on the day the check was cashed. Charging allegedly gave the investigator a statement which was corroborative of the testimony given by the defendant at the trial. Although Charging was subpoenaed, defendant’s attorney was unable to locate him for a personal interview prior to trial. Charging appeared on the day of the trial, but at that time made statements which contradicted his prior statement to the investigator. For tactical reasons, defendant’s attorney did not call Charging to testify. Defendant’s attorney stated that he had not attempted to locate other witnesses because he had relied on the statements made by Charging to the investigator, and therefore was unable to produce any testimony at trial other than defendant’s testimony. It is contended that the above situation resulted in accident or surprise which ordinary prudence could not have guarded against, and was not due to neglect or lack of diligence. There is no indication in the record that the defendant or his attorney requested a continuance before or during trial due to the alleged accident or surprise. Defendant’s motion for new trial was overruled by the trial court.
Two hearings were held on the habitual criminal charge. At the first hearing, defendant was found to be a habitual criminal, however his motion for new trial on that issue was sustained. After a second hearing, the court again found defendant to be a habitual criminal, and his second motion for new trial was overruled.
The primary evidence consisted of authenticated *299 judicial records of the United States District Court, District of South Dakota. The records showed that in 1968 the defendant was convicted of assault of an employee of the United States government, and sentenced and committed to imprisonment for a period of 3 years, although the sentence was later reduced by 3 months to a period of 2 years and 9 months. The records also showed that the defendant was convicted of unlawful transportation of firearms in interstate commerce in 1972. Defendant was sentenced and committed to imprisonment for a period of 4y2 years upon this conviction.
Also introduced in evidence was a certified copy of FBI records which reflected convictions, for the crimes described above, of one George Mills. These records contained fingerprints which were compared with fingerprints taken from the defendant in connection with the crime charged in the present case, and an expert witness testified that the fingerprints were identical. Defendant presented no evidence at the hearing on the habitual criminal charge.
We first address the question of whether the evidence was sufficient to sustain defendant’s conviction of uttering a forged bank check. It must be noted at the outset that in determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence, as such matters are for the jury. State v. Brown,
Section 28-601, R. R. S. 1943, provides that whoever shall utter or publish as true and genuine or cause to be uttered or published as true and genuine a forged bank check, knowing the same to be false, altered,
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or forged, with intent to prejudice, damage, or defraud any person, shall be imprisoned in the penal complex not less than 1 nor more than 20 years. One may be guilty of uttering a forged instrument although he was not the forger. State v. Fox,
Intent can rarely be established by direct proof, and must be inferred from the nature of the act itself and the circumstances surrounding it. State v. Jungclaus,
There is no question in this case that the defendant cashed a forged check, and that the word “lease” was written on the check under the drawer's signature. Mrs. Norman testified as follows in regard to what the defendant told her when he cashed the check: “He said that he had been down to Rosebud for a little while and came back and that his leasor owed him some money. So, he had stopped and *301 picked up his check. * * * He asked if we could cash the check that he had got from his leasors.” Defendant admitted at trial that he owned no land which he leased. In view of the circumstances of this case, this evidence was sufficient to support the inference and finding by the jury that the defendant acted knowingly and with intent to prejudice, damage, or defraud the Normans. Although the defendant stated that he did not know that the check was forged, and that he had no intention of cheating the Normans, it is the province of the jury to weigh the credibility of witnesses and judge the plausibility of explanations. State v. Brown, supra. The evidence was sufficient to send the case to the jury, and defendant’s contention to the contrary is without merit.
Defendant’s next contention is that it was error to overrule his motion for new trial on the ground of accident or surprise. Section 29-2101, R. R. S. 1943, provides that a new trial may be granted for the reason of “accident or surprise which ordinary prudence could not have guarded against.” The affidavit supporting defendant’s motion, as required by section 29-2102, R. R. S. 1943, has previously been summarized.
Essentially, defendant’s claim is that he did not have sufficient time to procure witnesses who would corroborate his testimony because of the “surprise” of one potential witness changing a prior statement shortly before trial. There is no indication in the record, however, nor in defendant’s brief, that there are in fact other potential witnesses who could be produced at a second trial. Defendant has not made a showing as to what such witnesses, if they do exist, would testify to at a second trial. Finally, defendant made no showing that ordinary prudence could have guarded against the alleged “surprise” other than a statement by his attorney that no other potential witnesses were located because of the reliance on Joe Charging’s original statement to the investigator.
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A motion for new trial pursuant to section 29-2101, R. R. S. 1943, is addressed to the sound discretion of the trial court, and its ruling will not be disturbed in the absence of a showing of abuse of discretion. State v. Crawford,
It should also be noted that defendant did not move for a continuance when he discovered the alleged surprise, and the trial court was not aware, either prior to or during the trial, of defendant’s contention that he needed more time to procure additional witnesses. While we have been unable to find any criminal cases in this state deciding the issue, we have held in a civil case that a motion for a new trial on the ground of surprise is properly overruled when a request for a continuance on that ground was not made at trial. Kehm v. Dumpert,
The final issue in this case is whether the trial court erred in finding the defendant to be a habitual criminal. Defendant contends that section 29-2221, R. R. S. 1943, is unconstitutional, that the evidence produced by the State was insufficient, and that the FBI records were erroneously admitted in evidence because they are hearsay and such admission violated defendant’s right to confront witnesses against him.
It has long been held that the habitual criminal law is constitutional, and defendant’s contention to the contrary is erroneous. State v. Fowler,
The United States District Court records introduced in evidence in the present case met the requirements of the above sections, and constituted sufficient evidence to find the defendant to be a habitual criminal. See, State v. Addison,
Defendant also contends that it was error to admit in evidence the FBI records because those records were hearsay evidence and their admission denied him the right to confront witnesses against him. Although there are no Nebraska cases precisely on point, numerous courts in other jurisdictions have held that certified copies of official records showing fingerprints may be received in evidence in a habitual criminal proceeding, and an expert may compare such fingerprints with the prints taken from the defendant at the time he was arrested on the habitual criminal charge. See Annotation, Evidence of Identity for Purposes of Statute as to Enhanced Punishment in Case of Prior Conviction, 11 A. L. R. 2d, § 11, at p. 892. We also note that under sections 27-1005 and 27-902, R. R. S. 1943, the contents of an *305 official record may be proved by a certified copy of such record. Finally, a record made by a public official of facts required to be observed and recorded pursuant to a duty imposed by law does not constitute hearsay evidence under section 27-803 (7), R. R. S. 1943. In the present case the FBI records were certified, and such records are required to be recorded pursuant to Title 28 U. S. C., § 534. The records were properly admitted in evidence under these circumstances. In any event, even if it were error to admit the FBI records in evidence, it was at most harmless error under section 29-2308, R. R. S. 1943, as such records were simply cumulative evidence in regard to defendant’s guilt, which was already sufficiently established by the records of the United States District Court. State v. Roan Eagle, supra. See, also, State v. Addison, supra.
The contentions of the defendant are without merit, and the judgment of the District Court is therefore affirmed.
Affirmed.