*1 au- had that the Commission if be conceded Even tacking policy, general thority prospectively, at least to determine findings specific of fact there no are tacking support general prohibiting conduct- order authority period years and color of ed over a knowledge the Com- tacit consent of the full and with mission. Neither is there sup- record to
evidence in the specific application port Seward denial Freight, Motor Inc. The action of Commission arbitrary unreasonable and instances both have been set should aside. v. Dennis G. Radcliff, Nebraska, appellee,
State appellant. 2d 119 31, 1972. No. 33119. Filed March appellant. Johnston, for & Johnston, Grossman Jerry Hugh Atkins, S. Wood, C. Nelson, C. Richard appellee. Langemach, Jr., Norman J.,C. before Heard Spencer, Boslaugh, Smith, White, JJ. Newton, Clinton, McCown, J.C. White, after trial appeal convictions from two is This County, de be- novo district court for Lancaster City jury, fore a for violations ordinance of the of an appeal, con- On the defendant Nebraska. prose- (1) ordinance under which he was tends *2 was is that the evidence (2) cuted unconstitutional, judg- support insufficient to the verdict. We affirm ment of the court. district complaints
The defendant convicted under which was charged unlawfully permitted a non- that defendant operating property which motor vehicle to remain charge days contrary to he has more than 30 for appears, from that the defend- It the record prosecuted of ordinance ant was under section 10.30.040 pri- City 8664, Lincoln, No. of the Nebraska. mary argument ordinance is that thrust of defendant’s A of the record No. 8664 is unconstitutional. review (No. 8664), in this case reveals that the ordinance which brief, is nowhere recited in exceptions otherwise or in the bill evidence presented appears therefore the record. constitutionality assignment or- error as to part, us consid- not before dinance, in whole or in 596, 625; 45 W. Novak, eration. 153 Neb. N. 2d State v. Max- 476, 554; 82 W. 2d Hohensee, 164 Neb. State v. N. State, 683; 29, 139 N. W. Steiner v. Steen, well v. 93 Neb. City 147, 723; Dell of 78 Neb. Perhaps the best statement W.
Neb. 95 N. 2d precluding of the constitution- consideration the rule of ality presented case in this to the court situation supra. it In that case Novak, is contained State v. city argued which that ordinance under was prosecuted of constitutional was defendant violative provisions. here, not before The ordinance, “* * * failure There this said as court. being present properly attacked an ordinance * * * * * A precludes consideration here. our it part upon them relying matters must make party such exceptions, present of the bill of or in some manner them *' * * part aas of the record.’ ** * foregoing holdings “Under the the district court * * judicial take notice of if could an ordinance *, judicial it took notice of unconstitutional ordinance duty was. the the defendant to offer evidence of preserved. that fact if error is to be Recitals con- objections purporting tained in or motions to set portions require- do ordinance meet the forth * ** indulge presumption ment. cannot respect; the district court erred it must in this be (Emphasis supplied.) the record.” appears It therefore cited, the authorities clear, properly present that the failure to an' ordinance as a part precludes of the record in the con- the district court validity sideration of its in this court. generally sufficiency The defendant next attacks finding of the evidence to that the defend- sustain storing parking nonoperating ant vehicle on *3 beyond property period permitted by his time of the a question light consider this in the of We the court’s reference to “non- instruction with the term operating vehicle” in the as used ordinance. The in- “ ** * was a struction of vehicle that as because lack, defect, fault,
some or some other substantial immediately said vehicle reason related to can not be used, purposes the for which it intended. ve- A stopped parked tempo- hicle of wholly because some rary emergency relating failure or the occurrence of an operator to the vehicle or the thereof is not included prohibition.” assigned in the It is not error or con- as defining meaning this instruction the tended the term of “nonoperating vehicle” was error. briefly evaluate the evidence the definition We given in the court’s instruction. The evidence is conflicting generally undisputed. is almost somewhat city finding a of The evidence sustains fol- lowing his facts: Behind house sec- residential
239 Boulevard, at 5000 North Cotner tion Dodge parked a 1955 had a and and defendant owned pink Pictures automobile. 1958 white DeSoto and presented to the and these were identified vehicles in Ne- Both unlicensed for its were consideration. cars Dodge it. license on had braska the 1955 an Illinois brought Ne- he moved He cars him when both with driving He neither car. He was braska 1964. Chrysler personal driving The use. de- a 1961 for his moving planned he fendant himself stated that country. police observation The vehicles into the out period from of over months, continued for the cars a of December 16, October until the middle giving as an vehicles, refused start Defendant battery. The a vehicles excuse that did have he during period of ob- location remained same Dodge no front inside it seat, had servation. type garden old and four cultivator tractor small plate. An anchor license and it bore an out-of-state
tires, line ran post lot defendant’s on the from clothesline steering Dodge, apparently to the into attached Dodge was for to the The wire attached wheel. by securing pole
purpose in use Mrs. clothesline DeSoto wife. The Radcliif, plates no license on it all. is insufficient evidence made
A contention primarily on is based this conviction to sustain the “nonoperational” as used question term vague, indefinite, unconstitutional, the ordinance is question in the ab- do not discuss this uncertain. present be- question stract. No pointed out. The whether fore us as we properly “nonoperating” submitted was. the term giving by instruc- the court of answered *4 further We observe recited. as9 heretofore tion No. jury cautioned the another instruction in that the “immediately” or in- mean at once did word such stantaneously, within to be construed as 240
time would to or appear ordinary pru- reasonable as dent under the exist. person circumstances to This re- is almost identical language to the defendant’s quested 2. instruction No.
The court gave the instructions pur- above-mentioned suant to the of the Lincoln pertinent Municipal section Code, ordinance section 10.30.040 subsection (being No. 8664) as “No in stating person substance * * * in or shall allow charge control any property nonoperating, wrecked, any junked, dismantled, partially or longer discarded to vehicle remain on such property * * thirty days; supplied.) than (Emphasis
We think it the clear that appears provisions subsection of the the ordinance under defendant which prosecuted inform the those public adequately persons governed the by as to prohibitions therein, that out court’s spell pre- instructions cise and definition of the term meaningful “nonopera- ting.” clear, defendant’s conten- contrary tion, there the subsection ordinance nothing or the put construction on it the trial court which by permit would to be misled into that jury assuming a vehicle must be operation all times under terms of the ordinance.
From what we have ample said evidence was to sustain the verdict of the find, and to court, definition of “nonoperating” given by the defendant inwas violation of the ordinance con- strued by court. Assuming testimony conflict with what been has recited herein, guilt or innocence a criminal case one to be jury, determined and it is the the credibility function jury’s pass of witnesses evidence; weigh and a verdict will not be disturbed unless clearly wrong, passion result State v. prejudice. Bundy, Neb. 2d Beranek 500; Petracek, Neb. 516, 169 N. 2dW. *5 photographs in introduced It is contended that passion prejudice evidence so enflamed require This- a mis- to of the case. is reversal considering imagine, demeanor difficult to case. is charged, precise in case which nature of offense aiding photographs more relevant in would be understanding to the witness- as testified facts resolving it under the es and basic issues before Photographs court’s evi- instructions. are admissible representations dence if to true and correct be represent places subjects they purport to of the pertinent large- inquiry. Their admission is times ly court unless an within the discretion of the trial predi- may abuse of discretion not- be shown, is error supra. cated thereon. Petracek, Beranek v. judgments the district court in both cases are
correct and are affirmed.
Affirmed. J., concurring. Clinton, points apparent anomaly
This case out an and lack logic reference case law of this state to with dis- circumstances under which this court and the may judicial municipal trict court notice ordi- take nances. municipal appeal Where there from from
a conviction for the dis- an ordinance violation we and may judicial trict court notice take of the ordinance for purpose determining guilt inno- purpose considering cence for the an attack ought on the adopt logically rule consistent. beyond
I concur in the
result because
is not clear
reasonable doubt that
un-
a
constitutional.
the ordinance in
Dwyer Omaha-Douglas
Public Build-
ing
p.
Commission,
ante
Nothing any way that is here said is intended in requiring pleading proof refer to the usual rules municipal ordinances other situations.