State v. Huffman

• Decision Date: 10 February 1967
• Docket Number: No. 36349,36349
• Citation: 148 N.W.2d 321,181 Neb. 356
• Parties: STATE of Nebraska, Appellee, v. Harold Eugene HUFFMAN, Appellant.
• Court: Nebraska Supreme Court

Page 321

148 N.W.2d 321

181 Neb. 356

STATE of Nebraska, Appellee, v. Harold Eugene HUFFMAN, Appellant.

No. 36349.

Supreme Court of Nebraska.

Feb. 10, 1967.

Certiorari Denied April 24, 1967. See 87 S.Ct. 1384.

Syllabus by the Court

1. An information must (1) inform the accused of the nature and cause of the accusation and (2) be reasonably definite as part of the prospective record for a defense of double jeopardy.

2. A search during informal detention of a person may be reasonable, although it is made under circumstances that would not justify custody in the tradition of arrest.

3. A ruling admitting an exhibit in evidence over objection to authentication will not be overturned except for a clear abuse of discretion.

Richard A. Huebner, Luebs, Tracy & Huebner, Bruce H. Schoumacher, Grand Island, for appellant.

Clarence A. H. Myer, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ.

SMITH, Justice.

A jury found defendant guilty of breaking and entering with intent to steal. The district court sentenced him as a recidivist to 15 years imprisonment, and he has appealed. Some of his contentions are as follows: (1) The information was vague in alleging location of the crime. (2) Physical things were received in evidence over two objections: (a) The articles had been seized by law enforcement officers in an unreasonable search, and (b) the foundation for admission was insufficient in respect to official custody. (3) The recidivist statute is unconstitutional, and the sentence is otherwise excessive.

The information charged a break and entry into 'a building occupied by Hornaday Manufacturing' in the County of Hall, Nebraska. Although it alleged a crime, jurisdiction, and venue, more was required. An accused possesses a right to be informed of the nature and cause of the accusation against him. An information must also be reasonably definite as part of the prospective record for a defense of double jeopardy. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533, 169 A.L.R. 868.

The sufficiency of an information may vary with the locality. We notice that Hall County is 540 square miles in area and that its population in 1960 was 35,757. A charge of break and entry into a kitchen occupied by John Smith in the County of Los Angeles would be glaringly vague. In contrast the charge against defendant was adequate.

Defendant moved to suppress the use of bricks, ammunition, and a rifle as evidence, alleging an unreasonable search and seizure. The motion was denied at a pretrial hearing, and at the trial the articles were admitted in evidence over renewed objection. In reviewing the rulings we consider all the evidence, at the trial as well as at the hearing on the motion. See, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Rent v. United States, 209 F.2d 893; State v. Randall, 94 Ariz. 417, 385 P.2d 709; People v. La Bostrie, 14 Ill.2d 617, 153 N.E.2d 570.

At 1:30 Sunday morning, February 6, 1966, patrolman Grossoehme of the Nebraska Safety Patrol saw an automobile on the Hornady premises. Two persons were sitting in the front seat of what appeared to be a brown Buick model of 1955 or 1956. The Buick moved along the private driveway and into a public road.

At 2:09 the same morning deputy sheriff Piel discovered a shattered window of the Hornady building. Looking inside, he saw broken glass that had enclosed cases for display of rifles. When he entered the building, he saw in the lobby three small pieces of brick and in the display cases brick dust. The company owner and Grossoehme having arrived, the Grand Island police were notified of the break-in, the missing rifles, and the Buick, which was described.

At 2:45 a.m., officer Kelly, a Grand Island policeman, saw an automobile that fitted the broadcast description. When he turned his red flasher on, the Buick stopped. The driver got out, walked back to the squad car, and identified himself as James Lindhardt, owner of the Buick. The passenger on request also got out and identified himself as Harold Huffman, the defendant. Kelly asked them whether they would mind waiting until officers who were on the way arrived. Defendant and Lindhardt had no objection.

Piel came upon the scene shortly before 3 a.m. Shining his flashlight through a window of the Buick, he saw inside a block of brick and a rifle with brick dust which he mistook for rust. Lindhardt in answering a question said that a friend had lent the rifle to him. On request he handed over the rifle and the block. Responding to an inquiry about ammunition, he opened the glove compartment, removed four boxes of ammunition, and handed over the boxes. No officer had entered the Buick up to that time.

Defendant argues that he was arrested without probable cause when Kelly stopped the Buick. Informal detention is permissible in spite of a lack of probable cause for custody in the tradition of arrest. See, s. 29--829, R.S.Supp., 1965; Rodgers v. United States, 8 Cir., 362 F.2d 358; Wilson v. Porter...