Hertz v. State, 33759

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS, C. J., CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ., and KOKJER; YEAGER
• Citation: 71 N.W.2d 113,160 Neb. 640
• Parties: Phil D. HERTZ, Plaintiff in Error, v. The STATE fo Nebraska, Defendant in Error.
• Docket Number: No. 33759,33759
• Decision Date: 24 June 1955

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71 N.W.2d 113 160 Neb. 640 Phil D. HERTZ, Plaintiff in Error,
v.
The STATE fo Nebraska, Defendant in Error. No. 33759. Supreme Court of Nebraska. June 24, 1955. Syllabus by the Court.

1. The district court may not properly direct a verdict of not guilty unless the evidence is so lacking in probative force that the court may say as a matter of law that it is insufficient to support a finding of guilt.

2. It is not the province of the district court to resolve conflicts in evidence in a criminal action or to pass upon the credibility of witnesses.

3. In a criminal action evidence of other similar acts to be admissible must amount to proof of other similar criminal offenses.

4. Evidence of other similar acts are admissible in a criminal prosecution for the

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purpose only of showing motive, criminal intent, or guilty knowledge.

E. Merle McDermott, Grand Island, Flansburg & Flansburg, Lincoln, for plaintiff in error.

[160 Neb. 641] Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ., and KOKJER, District Judge.

YEAGER, Justice.

Phil D. Hertz was prosecuted in the district court for Hall County, Nebraska, by information in the name of the State of Nebraska charging that, having in his possession a false, forged, and counterfeited conditional sale contract for the payment of money, he knowingly, falsely, and feloniously published the same as true with the intent to prejudice, damage, and defraud. He was tried to a jury, found guilty, and sentenced to serve a term of from 3 to 5 years in the State Penitentiary.

He duly filed a motion for new trial which was overruled. He seeks a reversal of the order overruling the motion for new trial and the judgment and sentence by petition in error to this court. For convenience he will be hereinafter referred to as defendant and the State of Nebraska will be referred to as the State.

As grounds for reversal the defendant sets forth six separate assignments of error. The first four will be considered as one since basically the four are predicated upon the single proposition that the evidence was insufficient to sustain a verdict of guilt of the charge contained in the information.

In support of the charge against the defendant the State adduced evidence that he was engaged at Grand Island, Nebraska, in the sale and distribution of sewing machines. Sales were made by salesmen in Nebraska and adjoining states. Sales were usually made on conditional sales contracts. Two salesmen were Orville H. Hobson and Edward H. Dishman.

Hobson was called as a witness by the State. He testified that prior to the incident which is the basis of the prosecution he had a conversation or conversations[160 Neb. 642] with the defendant in which the defendant stated in substance that he was having certain temporary financial difficulties and talked over with him a plan to meet these difficulties. The details of the plan have not been testified to, but generally it appears that it involved the obtaining by the witness and another salesman of forged conditional sales contracts for the sale of machines which defendant could use for the purpose of obtaining money or credit.

The witness testified that pursuant to this plan he caused to be prepared a contract and caused to be signed thereto the name of a fictitious person and that he delivered the contract to the defendant. He testified further substantially that the defendant knew that the contract was not genuine.

Other testimony is that after the defendant received the contract he sold it to Jamson, Peterson, Mehring Company and received in payment for it $108. It is upon this contract that the prosecution herein is based.

This is a substantial resume of all of the evidence in direct proof of the elements of the charge against the defendant except that by the testimony of Edward H. Dishman the testimony of Hobson was corroborated as to the plan devised for raising money or obtaining credit.

At the close of the State's case the defendant moved for a directed verdict which motion was overruled.

The question presented by the motion was that of whether the evidence had sufficient probative value to justify the submission of the defendant's guilt to a jury.

The rule is that the court will not direct a verdict of not guilty unless the

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evidence is so lacking in probative force that the court may say as a matter of law that it is insufficient to support a finding of guilt. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158; Phillips v. State, 154 Neb. 790, 49 N.W.2d 698; Spreitzer v. State, 155 Neb. 70, 50 N.W.2d 516; Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761.

[160 Neb. 643] The evidence was positive and unequivocal that the defendant was the...