State v. Boss

• Decision Date: 19 February 1976
• Docket Number: No. 40263,40263
• Citation: 195 Neb. 467,238 N.W.2d 639
• Parties: STATE of Nebraska, Appellee, v. Glen A. BOSS, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 639

238 N.W.2d 639

195 Neb. 467

STATE of Nebraska, Appellee, v. Glen A. BOSS, Jr., Appellant.

No. 40263.

Supreme Court of Nebraska.

Feb. 19, 1976.

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 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.

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 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 officer then turned on his flashing red lights and gave chase. The defendant pulled his car to the curb and stopped. The officer asked for the defendant's license and automobile registration and informed him that he was going to give him a ticket for speeding. As the officer turned to go back to the patrol car to get his summons book, the defendant got out of his car, grabbed the wrist and hand of the officer in which the officer held the license, and said to the officer: '. . . you dirty son-of-a-bitch.' The officer pulled away and attempted to turn the defendant to handcuff him. The defendant struggled and hit the officer on the side of his head with his arm and elbow, knocking off the officer's hat and spectacles. The officer attempted to subdue the defendant by striking him with the flashlight and spraying him with mace. The defendant escaped and ran, but almost immediately came back and submitted to arrest.

The defendant's version was that as he reached into his car to comply with the officer's request to get his auto registration, he (the defendant) said '. . . you son-of-a-bitch I wasn't speeding--if anything you was impeding traffic.' At that time, while the defendant's back was turned, the officer began beating him over the head with his flashlight. The defendant sought to protect his head with his hand, shoved the officer out of the way, and, because he was being sprayed with mace, ran. The testimony of the defendant's companion tended to verify defendant's version of the incident.

Defendant's first assignment of error challenges the constitutionality of section 28--729, R.S.Supp., 1974, which provides: 'Whoever abuses any judge or resists or abuses any sheriff, constable or any other officer in the execution of his office, shall be fined in any sum not exceeding one hundred dollars or be imprisoned in the jail of the county not exceeding three months.'

Defendant is specifically concerned with that portion of the statute which makes it a misdemeanor to Resist or abuse any officer in the execution of his office. He argues that the words Resist or abuse are so vague as to be unconstitutional because they sweep within their coverage constitutionally protected speech without sufficient definition of what is and is not criminal. No person, defendant contends, could read section 28--729, R.S.Supp., 1974, and know with any degree of certainty what he can or cannot say to an officer without fear of being arrested.

The defendant argues that the statute is unconstitutional on its face and as applied to him in this particular case. He relies upon Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408; and Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214. The term 'abuse' may include verbal injury as well as physical. One of the primary meanings of the word is 'to attack or injure with words.' Webster's Third New International Dictionary (Unabr., 1961). See, also, State v. Neubauer, 2 Conn.Cir. 169, 197 A.2d 93; Campf v. State, 80 Ohio St. 321, 88 N.E. 887. The word abuse and similarly broad terms in like statutes have been held to pass constitutional muster under the First Amendment to the Constitution of the United States only if they are construed so as to apply the statute to punish only what have been called 'fighting words.' Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Gooding v. Wilson, supra; Lewis v. City of New Orleans, supra. "(F)ighting' words (are) 'those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Gooding v. Wilson, supra. In accordance with the principles announced by the Supreme Court of the United States in Lewis v. City of New Orleans, supra, we construe the term abuse in the statute, insofar as it includes the use of words, to apply only to words which 'by their very utterance inflict injury or tend to incite an immediate breach of the peace.' We find that under the circumstances shown by the undisputed evidence the words here used were fighting words, being, as they were, directed at the officer by the person being investigated or arrested and, so to speak, in face-to-face confrontation while the officer was in the execution of his office.

We specifically reject the authority of Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638, and the concurrence of Mr. Justice Powell in Lewis v. City of New Orleans, supra, wherein it is suggested that the words here used cannot be fighting words when directed to a police officer because he is trained to accept such abuse without violent reaction. Such words, of course, do not justify violent reaction, but we can find no constitutional basis for the distinction made. On the other hand, we agree that whether any particular use of abusive language constitutes 'fighting words,' depends not only upon the words, but upon the circumstances as well. As so construed by this opinion, we hold that section 28--729, R.S.Supp., 1974, is constitutional and does not violate the First Amendment to the Constitution of the United States, nor Article I, section 5 of the Constitution of Nebraska.

The contention of the defendant that the word 'resist' is so vague as to be unconstitutional is without merit. Our holding in State v. Lewis, 184 Neb. 111, 165 N.W.2d 569, is controlling. See, also, State v. Holland, 183 Neb. 485, 161 N.W.2d 862.

The defendant's second and third assignments of error, pertaining respectively to the admission of certain testimony...