Birdsley v. State, 33851

• Decision Date: 13 January 1956
• Docket Number: No. 33851,33851
• Citation: 161 Neb. 581,74 N.W.2d 377
• Parties: William BIRDSLEY, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 377

74 N.W.2d 377

161 Neb. 581

William BIRDSLEY, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 33851.

Supreme Court of Nebraska.

Jan. 13, 1956.

Syllabus by the Court

1. Physical facts may not be accepted as a matter of law or as ground for refusal to submit a case to a jury as against the testimony of witnesses on a controverted question of fact unless they are demonstrable to a degree that reasonable minds cannot disagree as to their existence and unless the results flowing therefrom are demonstrable to the same degree agreeable to the known and immutable laws of physics, mechanics, or mathematics. If they fall short of this test or are reasonably in dispute, then they are to be considered by the jury along with all the other facts and circumstances proved.

2. In criminal cases, it is not the province of the court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are for the jury.

3. This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

4. The credibility of witnesses and the weight of their testimony are for the jury to determine in a criminal case, and the conclusion of the jury should not be disturbed unless it is clearly wrong.

5. Section 28-403.01, R.S.Supp., 1953, provides that whoever shall cause the death of another without malice while engaged in the unlawful operation of a motor vehicle shall be deemed guilty of motor vehicle homicide.

6. In a prosecution under said section, it is required that the unlawful operation of the motor vehicle shall be a proximate cause of the death of another.

Dwight Griffiths, Auburn, Robert S. Finn, Tecumseh, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Ralph D. Nelson, Asst. Atty. Gen., Lincoln, for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff in error, William Birdsley, hereinafter called defendant, was charged with motor vehicle homicide under the provisions of section 28-403.01, R.S.Supp., 1953, which became effective August 27, 1949. The information charged that on September 19, 1953, defendant caused the death of Alvin Carl Steffens and Dale Bize without malice while he was engaged in the unlawful operation of a motor vehicle, and he was thereby guilty of motor vehicle homicide contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Nebraska.

Upon a plea of not guilty, defendant was tried to a jury, and it returned a verdict finding him guilty as charged. Subsequently defendant's motion for dismissal or for judgment of not guilty notwithstanding the verdict or in the alternative for new trial, was overruled, and defendant was sentenced to pay a fine of $200 and costs of prosecution. Therefrom defendant prosecuted error to this court, assigning some 14 alleged errors, all of which concededly present only the basic question of whether or not the evidence was sufficient to sustain the verdict. We conclude that the evidence was sufficient.

Section 28-403.01, R.S.Supp., 1953, provides in part: 'Whoever shall cause the death of another without malice while engaged in the unlawful operation of a motor vehicle shall be deemed guilty of a crime to be known as motor vehicle homicide and, upon conviction thereof, shall be * * *' punished as provided therein.

An examination of the record discloses competent evidence adduced by the State from which the jury could have found beyond a reasonable doubt as follows: On the evening of September 19, 1953, defendant, then 21 years of age, drove a blue 1950 Ford two-door car from Auburn to Falls City. The car belonged to his father and mother. Three young men who were friends of defendant went with him. The weather was favorable, clear, and dry. They left Falls City to return to Auburn about 11 p. m., and on the outskirts thereof they picked up Dale Bize, a soldier in uniform and on leave, who was hitchhiking to his home in Lincoln. About 11:30 p. m., one Robert G. Bantz, 18 years old, who was driving his own 1950 green Ford, saw defendant get in the car he was driving and leave a drive-in on the outskirts of Falls City. Bantz also left soon thereafter and drove north on highway No. 73 toward Auburn. Several miles north of Falls City he again saw defendant driving north toward Auburn on the same highway. Bantz, while driving his car 80 miles an hour, passed defendant. Thereafter, while Bantz was driving 90 miles an hour, defendant passed him. Later, Bantz, driving better than 95 miles an hour, again passed defendant, who thereafter followed about one-half or one car length behind Bantz as they so continued down cemetery hill at the south end of an 'S' curve and entered a straightaway between the south and north curves of the 'S' located on paved highway Nos. 73-75 about 3 miles south of Auburn. The pavement was 20 feet wide with a curb on the east side but none on the west side. There defendant started to turn out to the left and pass Bantz again, but a 1946 Chevrolet two-door sedan was approaching from the north toward the south on its right side of the highway at 40 or 45 miles an hour. The Chevrolet safely passed Bantz and attempted to swerve and avoid defendant who was attempting to swerve back into his own lane again, but the left side of defendant's car struck the left front bumper, fender, and wheel of the Chevrolet and scraped along the entire left side thereof. The county sheriff investigated the accident within a few moments after it happened and then and later made necessary measurements.

After the impact the Chevrolet, so damaged and with its left front wheel bent back and inward, the tire thereon blown out, and the hood up, stopped within 25 or 30 feet south of the point of impact where there were some dirt and refuse about 3 feet wide and a car length long located on the pavement about equidistant on each side of the center thereof. Whether such dirt and refuse came from the Chevrolet or defendant's car or both of them is disputed. When the Chevrolet stopped, its left front wheel was about 2 feet over the center line headed southeast, with its left rear wheel about on the center line. There were no tracks on the pavement north of the Chevrolet.

After the impact defendant kept his foot down on the accelerator and never applied his brakes. Thus his car skidded at an angle to the east and north until its right wheels were off the east side of the pavement 10 or 15 feet north of the dirt and refuse. From that point its right wheels went north and east along the right shoulder of the highway with its left wheels on the pavement for some 296 feet until the car struck a cement flume which had a cement wall 11 inches high on each side thereof. From that point defendant's car veered to the left, back on the pavement, and after making a 50 to 60 foot oval or loop thereon with its left front wheel dragging, defendant's car angled back again over on the right shoulder. Thereafter, it traveled to and along a so-called first ditch and then went off into another deep ditch clear off...