Hoffman v. State

Decision Date06 May 1955
Docket NumberNo. 33732,33732
Citation70 N.W.2d 314,160 Neb. 375
PartiesNorman HOFFMAN, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
CourtNebraska Supreme Court

Syllabus by the Court.

1. Extrajudicial admissions or a voluntary confession is insufficient to prove that a crime has been committed, but either or both are competent evidence of the fact and may, with corroborative evidence of facts and circumstances, establish the corpus delicti and guilty participation of the defendant.

2. 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 will not be disturbed unless it is clearly wrong.

3. If intoxication of a person is an issue in litigation and foundational requirements are observed evidence of the alcoholic content of a specimen of his body fluid determined by a chemical analysis and expert opinion evidence as to intoxication based upon the fact of such alcohol in the system of the person in question are admissible.

4. The legislative act providing that a presumption results that the operator of a motor vehicle is under the influence of intoxicating liquor from a determination that the amount of alcohol in the body fluid of the operator at the time in question is 0.15 percent or more by weight as shown by a chemical analysis is in derogation of the common law, and it must be strictly interpreted and applied as limited by the terms of the act.

5. The provisions of section 39-727.01, R.R.S.1943, are only applicable to and available in a prosecution for a violation of section 39-727, R.S.Supp.1953.

6. If it does not appear from the record that an incorrect instruction to the jury did not affect the result of a trial of a criminal case unfavorably to the defendant the giving of the instruction must be considered prejudicial error.

John P. Jensen, Kearney, for plaintiff in error.

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


BOSLAUGH, Justice.

Norman Hoffman, identified herein as defendant, was charged with and convicted of the crime of motor vehicle homicide. Section 28-403.01, R.R.Supp.,1953. He was adjudged to be confined in the State Reformatory. He prosecutes error to review the record of his conviction.

The defendant contests the sufficiency of the evidence to authorize a verdict of guilty. He and Billy Carlson, hereafter referred to as Carlson, were traveling westward on U. S. Highway No. 30 in the early morning of May 16, 1954, in the 1949 Ford convertible automobile of defendant. The White Spot Service Station is near to, north of the highway, and east of Kearney. A 2 or 3 ton straight Chevrolet truck was serviced at the station. Its lights were checked and were found to be in serviceable condition. The lights on the sides of the truck were amber color, there were red ones on each rear corner, and a stop light on the back of the truck. The truck left the station, was driven out of the driveway, and westward on the highway.

The automobile of the defendant was at about 3:45 a. m. driven into and collided with the rear of the truck described above some distance west of the station. There were two persons traveling eastward on the highway and when they were 500 to 800 yards west of the station they saw the collision of the car and the truck. A spare tire was thrown into the air and over the highway. The noise made by the collision was heard. The truck twisted around to the left and then to the right down into the ditch on the north of the highway. The car collided with the rear of the truck on the north side of the highway, swerved towards the south, and traveled southwest to about the right-of-way fence of the Union Pacific Railroad Company. One of the men who witnessed the tragedy heard what he termed an explosion and saw the truck leave the highway as if it had been picked up and thrown from the road. The drive shaft of the truck was broken and detached from it. It was upright with one end in the shoulder of the highway a considerable distance east of where the truck came to rest. The dual wheels on the rear of the truck were broken off and were hanging on the south side of it.

The shoulders of the road were wet and muddy. There were wheel and skid marks for 50 feet east of the truck, for the next 6 feet eastward there were none, and for an additional distance of 57 feet there were tire marks on the surface of the road. At the extreme east end of the 57 feet there was debris consisting of chrome strips, pieces of battery casing, and broken glass in the north lane of the highway but none in the south lane. The distance from the debris to where the truck stopped was 147 feet.

The car of defendant was substantially destroyed. It is not easily understandable how anyone could have been riding in the driver's position or at all in the car and survived. The convertible top of the car was not collapsed. It was broken down on and into the body of the car by the collision. The distance from the debris and where the skid marks first appeared southwesterly to where the car went into the ditch on the south side of the road was 141 feet, and it thereafter traveled 101 feet. The total distance it went from the probable place of the collision was 242 feet. The distance from the debris in the north lane of the highway to the center driveway at the White Spot Service Station was 603 feet.

Immediately after the accident Carlson was on the passenger or right side of the front seat of the car. He was leaning to the right against the door which was partly open and the upper part of his body was hanging out of the car. He was dead. He had light or blond hair. Blood and blond hair were found on the post on the right front of the car. A man with dark hair was found in the front seat of the car almost but not wholly behind and under the steering post and wheel. He was afterwards identified as the defendant. He regained consciousness as the first person reached the car after the accident. Defendant was saying "Don't honey. Don't, honey.'--like that.' His right foot was between the clutch and the brake pedals. The front door on the left side of the car was forced open and his foot was loosened. The steering wheel had been bent downward and was against the defendant. It was pried upward and the defendant was removed from the car and taken to a hospital at Kearney. Alcohol was detected on the breath of defendant and in the car. There were drinking glasses, pop bottles, bottle openers, whisky bottles, beer bottles, and chlorophyll mints in the car.

The defendant and Carlson left Holdrege about 3 p. m., May 15, 1954, on an adventure to Grand Island and met two lady friends at the race track. They had 5 or 6 drinks before about 7 p. m. when they retired to the Sunset Motel where the ladies were staying and had highballs. Their liquor supply was not adequate to their demands and Carlson left to secure a supply of whisky. They met later, had dinner, and thereafter visited numerous night spots. The frequency or continuity of their indulgence in intoxicating liquor was remarkable. There was some unpleasantness and the ladies left defendant and Carlson about 2:30 a. m. at the Top Hat but they stayed there until about 2:45 a. m. They then went to the Sunset Motel to see the girls and 'give them a social call * * *.' When they left there on the trip back to Holdrege Carlson was in the front seat alone and was driving the car, and defendant was lying on the back seat.

The defendant said he went to sleep a few minutes after they left the Sunset Motel in Grand Island and that he was not conscious of anything thereafter until about 9:30 a. m. when he realized that he was in a hospital in Kearney. He did not drive his car from the time they left the race track in Grand Island about 7 p. m. the night before until after the accident. The car was driven by Carlson during this period. Defendant did not deny that he and Carlson were on an intensive drinking experience during the afternoon and night preceding the accident. Defendant denied that he gave consent to anyone that a specimen of his blood might be taken for a test of the alcoholic content of it; that he was not to his knowledge asked concerning this; that he did not tell the sheriff of the county that he was driving his car at the time of the collision; and that he had no recollection of being asked concerning this. He claims inability to have given binding consent or to have made any responsible statement at the time the sheriff claims to have talked with him at the hospital because of his condition resulting from his injuries, shock, and injections of morphine. The injuries defendant suffered in the accident were the fractures of the bones of each arm and an abrasion on the forehead between his eyes.

The sheriff claims he talked with defendant at the hospital at 6 a. m., about 2 hours after the accident; that defendant told him he was driving the car; that defendant then gave permission for a specimen of blood to be taken from his body and tested for its alcoholic content; that a specimen of blood was taken by the attending physician, placed in a container, and delivered to the sheriff; and that he retained it in his possession until he delivered it to the person in charge of the city and county public health laboratory in Grand Island. The person to whom the specimen of blood was delivered by the sheriff had a permit from the Department of Health of the state authorizing him to make body fluid tests and he was qualified to make such tests. He made an examination and test of the specimen of blood...

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20 cases
  • State v. Bellino
    • United States
    • Maine Supreme Court
    • July 31, 1978
    ...or prima facie concept of certain statutory percentages under the implied consent law in reckless homicide cases in Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (1955); People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138 (1961); State v. Aarhus, 80 S.D. 569, 128 N.W.2d 881 (1964).5 We note that......
  • Holloway v. State, CR
    • United States
    • Arkansas Supreme Court
    • July 19, 1976
    ...his constitutional rights and to give a statement. To the contrary, see Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445; Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314; People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138; State v. Aarhus, 80 S.D. 569, 128 N.W.2d 881. The argument, we think, is Fin......
  • State v. Moon, 141
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    • October 14, 1981
    ...(1968); State v. Capelle, 285 Minn. 205, 172 N.W.2d 556, 559 (1969); State v. Campbell, Mont., 615 P.2d 190 (1980); Hoffman v. State, 160 Neb. 375, 384, 70 N.W.2d 314 (1955); People v. Leis, 13 A.D.2d 22, 24, 213 N.Y.S.2d 138 (1961); Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786, ......
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    ...was in derogation of common law and therefore was applicable only to driving under the influence prosecutions. See Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (1955). In Raskey v. Hulewicz, 185 Neb. 608, 616, 177 N.W.2d 744, 749-50 (1970), a personal injury case arising out of a motor veh......
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