238 N.W.2d 639 (Neb. 1976), 40263, State v. Boss

Docket Nº:40263.
Citation:238 N.W.2d 639, 195 Neb. 467
Opinion Judge:CLINTON, J.
Party Name:STATE of Nebraska, Appellee, v. Glen A. BOSS, Jr., Appellant.
Attorney:R. Steven Geshell of Robak & Geshell, for appellant. Paul L. Douglas, Attorney General, and Marilyn B. Hutchinson, for appellee.
Case Date:February 19, 1976
Court:Supreme Court of Nebraska

Page 639

238 N.W.2d 639 (Neb. 1976)

195 Neb. 467

STATE of Nebraska, Appellee,

v.

Glen A. BOSS, Jr., Appellant.

No. 40263.

Supreme Court of Nebraska.

February 19, 1976

Page 640

[Copyrighted Material Omitted]

Page 641

Syllabus by the Court

1. The word 'abuse' insofar as it includes verbal abuse in section 28--729, R.S.Supp., 1974, is construed to include only those which have been described as 'fighting' words, i.e., those which by their very utterance tend to inflict injury or tend to incite an immediate breach of the peace. As so construed the statute violates neither the First Amendment to the Constitution of the United States, nor Article I, section 5, of the Constitution of Nebraska.

2. Whether any particular use of abusive language constitutes 'fighting words' depends not only upon the words, but also upon the circumstances in which they are used.

3. The word 'resist' as used in section 28--729, R.S.Supp., 1974, is not so vague as to make the statute unconstitutional.

4. When the State calls a witness to challenge defendant's claim of truth and veracity, a line of inquiry directed toward the defendant's previous character is firmly forbidden the State on direct examination.

5. When a defendant testifies on his own behalf, the prosecuting attorney may question him as to his previous convictions for felony and the number thereof, but no details as to the nature of the charges or other details may be elicited or received.

6. A defendant is entitled to offer [195 Neb. 468] evidence of his reputation for truth and veracity. The prosecution is entitled to dispute that evidence only by evidence of bad reputation for truth and veracity.

7. A prosecutor in his argument is entitled to refer to previous convictions of felony only for the purpose of arguing the defendant's credibility. He is not entitled to use the conviction for the purpose of inferring the probability of the defendant's guilt of the crime charged.

8. Ordinarily a party who does not object to an argument of the prosecutor which is alleged to constitute misconduct will be held to have waived his right to complain.

9. Error may not be predicated on the refusal to give an instruction which either erroneously or only partially covers the applicable law.

10. Jurors are judges of the credibility of witnesses and of the weight to be given their testimony and, within their province, they have the right to credit or reject the whole or any part of the testimony of a witness in the exercise of their duty to determine the truth.

Page 642

11. Resolutions of conflicts in evidence and credibility of witnesses are not for the reviewing court, but for the jury.

Robak & Geshell, Columbus, for appellant.

Paul L. Douglas, Atty. Gen., Lincoln, Marilyn Hutchinson, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

A jury verdict of guilty was rendered against defendant, Glen A. Boss, Jr., in the county court of Platte County on the charge of resisting or abusing an officer in the execution of his office, contrary to the provisions of section 28--729, R.S.Supp., 1974. He was sentenced to 30 days in the county jail. Defendant thereafter appealed to the District Court where the judgment [195 Neb. 469] and sentence of the county court were affirmed. He then appealed to this court.

The issues for consideration on this appeal are: (1) Is section 28--729, R.S.Supp., 1974, constitutional; (2) did the court below err in admitting evidence that defendant had probation violations on his record; (3) should the court below have granted a mistrial because of improper final argument by the prosecuting attorney; (4) did the court below err in failing to give an instruction requested by the defendant; (5) was the judgment sustained by sufficient evidence; and (6) was the sentence excessive. We affirm.

The versions of the police officer and of the defendant and his companion as to what occurred were in most respects in direct conflict. Defendant and his companion admitted they had been drinking beer for a period of about 3 hours. The occurrence in question happened as the defendant and his companion were traveling in the defendant's car to a restaurant.

The police officer's version was that the car, with the defendant at the wheel, passed the police patrol car (both traveling in the same direction) on an icy, snowpacked street at a speed in excess of the posted limit and as the defendant's car passed it fishtailed two or three times. The...

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16 practice notes
  • 370 N.W.2d 501 (Neb. 1985), 84-827, State v. Benzel
    • United States
    • Nebraska Supreme Court of Nebraska
    • 12 Julio 1985
    ...to make a timely objection is equivalent to failing to make an objection at all and waives any right to complain. See State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976). Further, if the court does consider the objection, the remarks were not unduly prejudicial. Whether prosecutorial miscond......
  • 395 N.W.2d 538 (Neb. 1986), 86-047, State v. Heathman
    • United States
    • Nebraska Supreme Court of Nebraska
    • 31 Octubre 1986
    ...jury was told by the State in opening remarks that it was about to hear a case about the defendant's selling marijuana. In State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976), the prosecutor made reference to the defendant's prior conviction. There was no motion for mistrial, objection, or r......
  • 469 N.W.2d 785 (Neb. 1991), 90-575, State v. Kramer
    • United States
    • Nebraska Supreme Court of Nebraska
    • 31 Mayo 1991
    ...prior felony convictions. He contends the district court's evidentiary ruling was erroneous, quoting our holding in State v. Boss, 195 Neb. 467, 473, 238 N.W.2d 639, 644 (1976), that "[w]hen a defendant testifies on his own behalf, the prosecuting attorney may question him as to his pr......
  • 363 N.W.2d 507 (Neb. 1985), 84-282, State v. Groves
    • United States
    • Nebraska Supreme Court of Nebraska
    • 1 Marzo 1985
    ...or not the enactment reaches a substantial amount of constitutionally protected conduct. It does not. As we observed in State v. Boss, 195 Neb. 467, 471, 238 N.W.2d 639, 643 (1976): The word abuse and similarly broad terms in like statutes have been held to pass constitutional muster under ......
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16 cases
  • 370 N.W.2d 501 (Neb. 1985), 84-827, State v. Benzel
    • United States
    • Nebraska Supreme Court of Nebraska
    • 12 Julio 1985
    ...to make a timely objection is equivalent to failing to make an objection at all and waives any right to complain. See State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976). Further, if the court does consider the objection, the remarks were not unduly prejudicial. Whether prosecutorial miscond......
  • 395 N.W.2d 538 (Neb. 1986), 86-047, State v. Heathman
    • United States
    • Nebraska Supreme Court of Nebraska
    • 31 Octubre 1986
    ...jury was told by the State in opening remarks that it was about to hear a case about the defendant's selling marijuana. In State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976), the prosecutor made reference to the defendant's prior conviction. There was no motion for mistrial, objection, or r......
  • 469 N.W.2d 785 (Neb. 1991), 90-575, State v. Kramer
    • United States
    • Nebraska Supreme Court of Nebraska
    • 31 Mayo 1991
    ...prior felony convictions. He contends the district court's evidentiary ruling was erroneous, quoting our holding in State v. Boss, 195 Neb. 467, 473, 238 N.W.2d 639, 644 (1976), that "[w]hen a defendant testifies on his own behalf, the prosecuting attorney may question him as to his pr......
  • 363 N.W.2d 507 (Neb. 1985), 84-282, State v. Groves
    • United States
    • Nebraska Supreme Court of Nebraska
    • 1 Marzo 1985
    ...or not the enactment reaches a substantial amount of constitutionally protected conduct. It does not. As we observed in State v. Boss, 195 Neb. 467, 471, 238 N.W.2d 639, 643 (1976): The word abuse and similarly broad terms in like statutes have been held to pass constitutional muster under ......
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