Hoffman v. State, 33969
| Decision Date | 15 June 1956 |
| Docket Number | No. 33969,33969 |
| Citation | 162 Neb. 806,77 N.W.2d 592 |
| Parties | Norman HOFFMAN, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An instruction reciting the provisions of statutes regulating and controlling the speed of motor vehicles should include therein all the material applicable statutory limitations and qualifications to enable a jury to observe and understand the duty of drivers at the time and place in question.
2. In criminal cases prosecuted under the motor vehicle homicide act the negligence or unlawful acts of another driver which proximately contributed to the death, as distinguished from an independent intervening cause thereof, is not a defense if the evidence is sufficient to sustain a conclusion beyond a reasonable doubt that the defendant's negligence or unlawful acts were also a proximate cause of the death of another.
3. Within the meaning of the motor vehicle homicide act the following is a proper description of a person under the influence of intoxicating liquor: A person is under the influence of intoxicating liquor if such person is under such influence of intoxicating liquor to such an extent as to have lost to an appreciable degree the normal control of his body or mental faculties, and to the extent that there is an impairment of the capacity to think and act correctly and efficiently.
4. Hypothetical questions to experts must be framed so as to fairly reflect facts either admitted or proved by other witnesses and must not assume as proved that which has not been, nor should they be based upon conclusions of fact which can only be found by a jury.
5. It is error to permit an expert to answer a question based upon a hypothesis which hypothesis assumes facts not proved by other witnesses.
6. If however the deficiency is admitted or proved by the opposing party the error becomes harmless and in consequence may not be regarded as ground for reversal.
7. In the prosecution of a charge of motor vehicle homicide proof of gross negligence is not essential to sustain a conviction.
8. The test by which a jury shall determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt.
9. After a jury has considered the evidence in the light of this rule and returned a verdict of guilty the verdict on review may not, as a matter of law for insufficiency of evidence, be set aside if the evidence sustains some rational theory of guilt.
Dryden & Jensen, Kearney, for plaintiff in error.
C. S. Beck, Atty. Gen., Ralph D. Nelson, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
This is the second appearance of this case in this court. It was previously reported as Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314. The case is an error proceeding from the district court for Buffalo County, Nebraska, in a criminal action wherein Norman Hoffman was tried and convicted on a charge of causing death while engaged in the unlawful operation of an automobile. Following conviction he was sentenced to serve a term of not less than 1 year nor more than 3 years in the State Reformatory.
By this proceeding Hoffman, the plaintiff in error, who will hereinafter for convenience be referred to as defendant, seeks a reversal of the conviction and sentence. His brief contains five assignments of error as grounds for reversal: (1) The court erred in giving instruction No. 7 of its own motion; (2) the court erred in giving instruction No. 11 of its own motion; (3) the court erred in giving instruction No. 15 of its own motion; (4) the court erred in receiving evidence of expert witness, Dr. R. D. Johnson, as to intoxication; and (5) the evidence is not sufficient to sustain a conviction.
A determination upon these assignments of error requires a brief review of the essential phases of the crime charged against the defendant and the evidence in support of it.
The essential of the charge are that on May 16, 1954, the defendant was engaged in the operation of an automobile and while so engaged he unlawfully so operated it that he caused it to collide with another motor vehicle, which other motor vehicle was being lawfully driven on a highway, in such manner as to cause the death of one Billy Carlson. The sufficiency of the charge is not brought into question.
In brief detail the record of the evidence in support of the charge discloses that on the afternoon of May 15, 1954, the defendant with the deceased, Billy Carlson, came to Grand Island, Nebraska, in an automobile belonging to the defendant and that after arrival at Grand Island the two partook of numerous drinks of alcoholic liquor after which at about 3 a. m. on May 16, 1954, they left Grand Island and started westward toward Kearney, Nebraska. The evidence of consumption of liquor came from the defendant on the trial of the case.
At or near the east edge of Kearney, Nebraska, the automobile in which defendant and Carlson were riding collided with the rear end of a truck going in the same direction. The truck was caused to leave the highway to the right. Defendant's automobile left the highway to the south or left and came to rest an undetermined but quite considerable distance to the west. The truck was badly damaged and defendant's automobile was practically demolished. The defendant was seriously injured and Carlson was killed. Defendant's automobile had two doors with two separated front seats and a rear seat. After the automobile came to rest Carlson was in the right front seat and was hanging partly outside the car on that side. The defendant was in the left front or driver's seat but was somewhat to the right of what may be regarded as the driver's proper position.
After the automobile came to rest the defendant was taken to the hospital where according to a State's witness he said that he was the driver of the automobile. The State adduced no direct evidence, as distinguished from circumstantial evidence, that the defendant was driving the automobile. The defendant testified that Carlson was the driver and that he was asleep in the back seat of the car and had no knowledge of what occurred after leaving Grand Island until about 6 hours after the collision. A witness also testified that at the hospital the defendant consented that a sample of his blood could be taken. A sample of the blood was taken and testimony discloses that it contained .24 percent of alcohol by weight. A witness called as an expert testified effectually that in his opinion alcohol in the blood in excess of .15 percent was sufficient to lower the mental and physical abilities of the person.
The State adduced direct evidence that the truck which was struck by defendant's automobile was moving westward in its proper lane of travel when struck and that, shortly before, it was examined and that its lights were in proper condition and lighted. There is no evidence to the contrary and none from which a contrary inference could reasonably be drawn.
The defendant denied that he knowingly either stated that he was driving the automobile or that he consented to the taking of the sample of blood.
It was on this evidence that the jury found the defendant guilty of causing the death of Carlson while he was unlawfully operating an automobile.
As is apparent from what has been said the information is sufficient to embrace any unlawful operation of an automobile causing death. The court however in the instructions defining the issues submitted only unlawful operation by reason of gross and excessive negligence. The State presented its case in part on the theory that there was involved operation under the influence of intoxicating liquor but that theory was not submitted in the instruction defining the issues. It was referred to later but only in definition of statutory duties. Of this however no complaint is made.
As pointed out by the first assignment of error the defendant asserts that the court erred in giving instruction No. 7 of its own motion. The second is that the court erred in giving insruction No. 11. As we interpret, these two are presented together. Under these the legal principle as follows is presented: 'An instruction reciting the provisions of statutes regulating and controlling the speed of motor vehicles should include therein all the material applicable statutory limitations and qualifications to enable a jury to observe and understand the duty of drivers at the time and place in question.' Harding v. Hoffman, 158 Neb. 86, 62 N.W.2d 333, 335. See, also, Hamblen v. Steckley, 148 Neb. 283, 27 N.W.2d 178.
There has been a failure to discover in the presentation of the first assignment any real suggestion of error in instruction No. 7. Instruction No. 11 contains a definition of statutory duties. Apparently the basis of the objection to instruction No. 11 is not that the duties of the defendant were not properly defined, but that there was a failure to define the duties and obligations of the operator of the truck upon the highway.
There is no evidence to indicate that the driver of the truck operated it in any wise contrary to any provisions of statute.
Instructions as to the manner of the operation of the truck would have been proper only if there was evidence tending to show that the operation was an independent intervening cause.
A prosecution under the act under which this case is prosecuted is in its nature a prosecution for manslaughter. In a prosecution under this act...
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