Franz v. State, 33248

• Decision Date: 20 February 1953
• Docket Number: No. 33248,33248
• Citation: 156 Neb. 587,57 N.W.2d 139
• Parties: FRANZ v. STATE.
• Court: Nebraska Supreme Court

Page 139

57 N.W.2d 139

156 Neb. 587

FRANZ v. STATE.

No. 33248.

Supreme Court of Nebraska.

Feb. 20, 1953.

Syllabus by the Court.

1. Intoxicating liquor is any liquor intended for use as a beverage, or capable of being so used, which contains alcohol to the extent that it will produce some degree of intoxication when consumed in a quantity that may practically be drunk.

2. The distinctive characteristic of all liquors is that they contain alcohol; that they are capable of being consumed as a beverage; and that when so used, they will produce, to some degree, intoxication in the common acceptation of the term.

3. A complaint charging the offense defined by section 39-727, R.R.S.1943, is not defective or insufficient because the words intoxicating liquor are used therein instead of the words alcoholic liquor.

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 may not be disturbed unless it is clearly wrong.

5. Absence of any direct, incriminatory evidence is ordinarily made the test of the obligation of the trial court to instruct as to the probative value and manner of considering circumstantial evidence in a criminal case, and, if there is direct evidence of the principal facts essential to guilt, the failure to instruct in that respect is not error.

6. A witness may testify from observation made by him, after stating the facts upon which the conclusion is drawn, that a person was or was not under the influence of intoxicating liquor.

7. The condition of being under the influence of intoxicating liquor is a fact which a nonexpert may ascertain in the same manner in which he gains knowledge of other facts.

8. It is the duty of the court upon request of the accused to instruct the jury upon his theory of the case, if there is evidence to support it.

9. If the jury is correctly instructed generally as to law, error cannot be predicated upon an omission of the court to charge as to some particular phase of the case unless a proper instruction was requested by the party complaining of the omission.

10. An error in a criminal case to require a reversal of a conviction must be harmful to a substantial right of the defendant.

11. In deciding if there was error in a part of an instruction it will be considered with the whole instruction and any additional matter in the charge on the subject.

Ginsburg & Ginsburg, Lincoln, for plaintiff in error.

Clarence S. Beck, Atty. Gen., and Dean G. Kratz, Asst. Atty. Gen., for defendant in error.

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

BOSLAUGH, Justice.

Clarence E. Franz was charged with the offense of operating a motor vehicle on or about November 15, 1951, on a public highway in Dodge County while he was under the influence of intoxicating liquor. He was convicted in the justice of the peace court and from the adjudication made there he took an appeal to the district court. He was unsuccessful in a jury trial in that court, and he was adjudged to pay a fine and ordered not to operate a motor vehicle for a designated period from the date of the satisfaction of the fine. His motion for new trial was denied and this error proceeding was instituted.

The authority for the charge made against the defendant is the statutory declaration that it is unlawful for any person to operate a motor vehicle 'while under the influence of alcoholic liquor.' Section 39-272, R.R.S.1943. The complaint charges that defendant operated a motor vehicle 'while under the influence of intoxicating liquor.' The defendant timely and properly challenged the sufficiency of the complaint to state an offense under the penal laws of the state and has continued his objection throughout the litigation. The argument pertinent to the suggested fatality of the deviation in the complaint from the language of the statute is that the main defense was that defendant may have been under the influence of a medicinal preparation which affected his conduct, but it was not the kind and nature forbidden by the statute; that the complaint and an instruction in agreement with it allowed the jury to speculate and find that the preparation taken by the defendant may have had an intoxicating effect and was therefore within the expression 'intoxicating liquor' unjustifiably substituted for the words of the statute 'alcoholic liquor'; and that the phrase intoxicating liquor is much broader and more comprehensive than the expression alcoholic liquor and it permitted a finding of guilt under facts which would not have admitted of such a conclusion under the more restrictive statutory expression.

Intoxicating liquor generally includes and means any liquor intended for use as a beverage, or capable of being so used, which contains alcohol no matter how obtained, in such a percent that it will produce some degree of intoxication when imbibed in a quantity that may practically be drunk. The distinctive characteristic of all liquors is that they contain alcohol, the basis of all intoxicating drinks; that they are capable of being consumed as a beverage; and that when so used, they will produce intoxication to some extent in the usual and common acceptation of the term. 30 Am.Jur., Intoxicating Liquors, § 6, p. 255; 48 C.J.S. Intoxicating Liquors, § 1, p. 135; 1 Woollen and Thornton, Intoxicating Liquors, § 5, p. 8; Annotation, 4 A.L.R. 1137; Coleman v. State, 112 Tex.Cr.R. 635, 18 S.W.2d 162; Roberts v. State, 4 Ga.App. 207, 60 S.E. 1082; People v. Haney, 100 Cal.App. 295, 279 P. 1054; Commonwealth v. Louisville & N. R. R. Co., 140 Ky. 21, 130 S.W. 798; United States v. Kinsel, D.C., 263 F. 141. This is what the terms mean to people generally. This is obviously the meaning alcoholic liquor and intoxicating liquor had to the Nebraska lawmakers. In the amendment of 1949 concerning the offense involved here the legislators used the terms interchangeably. The first section of the act contains the words 'under the influence of alcoholic liquor.' The next section refers specifically and definitely to the first section as relating to driving a motor vehicle while 'under the influence of intoxicating liquor'. (Emphasis supplied.) Laws 1949, c. 116, p. 309. The first section of the act of 1949 was amended in 1951, and the Legislature evidenced its understanding of the sameness of the meaning of the two expressions by continuing the use of identical language in the two sections. Laws 1951, c. 118, § 1, p. 528; § 39-272, R.R.S.1943. An ordinary individual would not believe that intoxicating liquor or alcoholic liquor described or included a medicine prescribed by a doctor and taken by a patient for a known serious chronic physical defect or ailment, without regard to the alcoholic content of the medicine.

The words alcoholic liquor as used by the Legislature in the act defining the offense charged herein mean any intoxicating liquor intended to be and capable of being used as a beverage and which when so used may result in the one who indulged in it being under its influence. The Legislature was not dealing with technical and scientific distinctions between various liquors. Its concern was with the use of any kind of alcoholic beverage capable of having an intoxicating effect and dangerous result when consumed by any person in control of or operating a motor vehicle. The record does not establish that the defendant was prejudiced by the substitution and use of the words intoxicating liquor for the words alcoholic liquor.

A member of the police department of the city of Fremont saw the accused, who will be identified as defendant, about 6:30 p. m. on November 15, 1951, operating a motor vehicle on a street of the city. He disregarded a red traffic control light as he entered and passed through an intersection. He stopped in the lane of traffic some distance from the intersection. He had been sounding the horn of his car since the policeman first saw him. When the officer went to the car defendant had opened the door of the car and was 'raving and using abusive language.' The officer stated he was a police officer, exhibited his badge, said he did not think the defendant was in a condition to drive his car, and asked him to 'slide over.' Defendant said he was a federal officer, struck the policeman in the mouth, closed the door, and drove down the street towards the north. He drove slowly in an irregular course to the right, off the pavement, then to the left near, but not across, the center line until he had gone several blocks, came to an intersection, and violated the requirement of a stop sign. He continued to travel on streets of the city and committed another traffic violation by failing to stop before entering an intersection protected by a stop sign. The policeman and a member of the Nebraska Safety Patrol overtook defendant on Clarkson Street where he had stopped his car. When they opened a door of the car defendant was abusive, called them vulgar and indecent names, and attempted to strike the patrolman. They placed him under arrest, called a police car, and took him to the police station. On the way there he talked abnormally loud, was abusive, and his language was inelegant. He had the odor of alcohol on his breath. His eyes were dilated and glassy. He was unsteady when he stood or attempted to walk. His clothes were disarranged, wet, and soiled. His speech was thick. The policeman, the captain of the Nebraska Safety Patrol, and the sergeant of the police department were each of the opinion that defendant was under the influence of intoxicating liquor when he was arrested and brought to the station. A doctor who saw, talked with, and examined him about 10:30 that night said that he had every symptom of being under the influence of intoxicating beverage; that his pupils were dilated; that his skin was flushed; that he had the odor of alcohol on his breath; and that...