Howard v. State
| Decision Date | 12 March 1923 |
| Docket Number | 23157 |
| Citation | 192 N.W. 505,109 Neb. 817 |
| Parties | VERN HOWARD v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Pawnee county: JOHN B. RAPER JUDGE. Affirmed as modified.
AFFIRMED AS MODIFIED.
Dort & Witte, for plaintiff in error.
Ora S Spillman, Attorney General, and George W. Ayres, contra.
Heard before MORRISSEY, C. J., ROSE, DAY, GOOD and DEAN, JJ.
Defendant was convicted under section 3241, Comp. St. 1922, of having been "found in a state of intoxication." It was also charged, and defendant admitted, that he pleaded guilty to an information which charged a like misdemeanor about 6 months before; so that this was the second time that he was charged with being intoxicated. The court sentenced him to confinement in the county jail for a period of 45 days and it was adjudged that he pay the costs of the action. Defendant prosecutes error.
The facts are substantially these. Defendant was driving an automobile about Pawnee City accompanied by three companions. He ran his car into a ditch and the city marshal discovering his plight directed a bystander to take defendant's place at the wheel and drive the car to the courthouse with its occupants. Upon arrival there defendant was placed under arrest and a complaint was subsequently filed. This was at the noon hour and defendant was detained at the sheriff's office until about 5 o'clock, when he was put in jail.
Four or five witnesses testified on the part of the state. The city marshal, having, as he said, observed the manner, the conduct and the appearance of defendant with the view of discovering his condition, testified that he was intoxicated. Two or three of the witnesses, having the same qualifications as the city marshal with respect to observation, testified that they detected the smell of liquor on defendant's breath and that he was intoxicated. Practically all of the state's witnesses qualified their statements by saying that they had for many years seen and had often observed intoxicated men and that they could tell, by observation, whether a person was intoxicated and by listening to his talk and the like.
The sheriff testified that defendant fell out of a chair in his office. It is argued by defendant that the chair out of which he fell was the ordinary swivel office chair with caster rollers, and that it is not unusual for such chairs to slip out from under a person when they are on a hard floor and tilted back. This, however, was only one feature of the case and was properly submitted with the other evidence for the jury's consideration. It also appears that, as defendant went upstairs in the courthouse, he "put his hand up against the wall to kind of steady himself." This witness said he smelled liquor on defendant's breath and that he appeared to have been drinking. A business man in the town testified that defendant's appearance, conduct, manner and condition indicated that he was intoxicated.
Five or six witnesses testified on the part of defendant. One on the direct examination testified that defendant "was not what I would call drunk." He added that he had evidently been drinking that day. For the defense another witness who had observed defendant's conduct said, "I couldn't say that he was drunk and I couldn't say he was sober, I never examined him," and that he didn't see "anything particularly" from which he "could swear that he was drunk; no." Another witness for defendant said on cross-examination that he thought defendant "had a drink or so," but that he would not say that he was drunk.
That there was competent evidence to support a finding of intoxication sufficiently appears.
Defendant, however, assigns as prejudicial error the fact that the state was permitted to amend the information after the trial had commenced by inserting the word "unlawful." Section 3241, Comp. St. 1922, under which the information was drawn, reads: "If any person shall be found in a state of intoxication, he shall be deemed guilty of a misdemeanor," etc. The information when filed charged that defendant was "found in a state of intoxication," etc. After the amendment was made the information read that defendant was "found in a state of unlawful intoxication," etc. The only change being the insertion of the word "unlawful."
In 22 Cyc 332, it is said that, where the term "unlawful" is not contained "in the definition of a statutory offense, it need not be employed in an indictment." In Cordson v. State, 77 Neb. 416, 109 N.W. 764, we held: "Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute."
Clearly the original complaint states an offense in the language of the statute. That was sufficient. The amendment was mere surplusage. It follows that prejudical error cannot be predicated on that assignment of alleged error.
It may be added that on this point the state cites and relies in part on that part of section 10186, Comp. St. 1922, which reads: "No judgment shall be set aside, or new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission, or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that...
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