Pribyl v. State

• Decision Date: 27 December 1957
• Docket Number: No. 34256,34256
• Citation: 87 N.W.2d 201,165 Neb. 691
• Parties: Lawrence E. PRIBYL, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 201

87 N.W.2d 201

165 Neb. 691

Lawrence E. PRIBYL, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34256.

Supreme Court of Nebraska.

Dec. 27, 1957.

Syllabus by the Court.

1. In an action charging motor vehicle homicide the burden is on the State to prove beyond a reasonable doubt that the person charged operated the motor vehicle in violation of one or more of the statutory provisions relating to the operation of motor vehicles.

2. In an action charging motor vehicle homicide the burden is on the State to prove that the unlawful acts were the proximate cause of the death.

3. A witness may give his opinion from observations 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.

4. Speed of a motor vehicle is not a matter of exclusive knowledge or skill, but anyone with a knowledge of time and distance is a competent witness to give an estimate.

5. This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

6. Where a person stands charged with a criminal offense and he seeks discharge therefrom by writ of habeas corpus, which writ is denied, he is not entitled to have the trial on the criminal charge delayed until an appeal from the denial of the writ of habeas corpus has been ultimately determined.

7. Where the method pointed out for securing jurors is disregarded and due and timely objection is made by a defendant in a criminal case, error will be presumed.

8. Where the method pointed out for securing jurors is disregarded and due and timely objection has not been made by a defendant in a criminal case, a reversal may not be had on account thereof in the absence of the appearance of prejudice.

9. By section 25-1634.02, R.R.S.1943, the right to summon persons from bystanders or the body of the county, commonly referred to as talesmen, for jury service was made to depend upon necessity, which necessity is determinable by the judge presiding.

10. Motor vehicle homicide is a separate and distinct crime and so defined by statute.

11. A photograph proved to be a true representation of the person, place, or thing which it purports to represent is competent evidence of anything of which a verbal description by a witness is competent and relevant.

12. Where a photograph illustrates or makes clear some controverted issue in the case, a proper foundation having otherwise been laid for its receiption in evidence, it may properly be received, even though it may present a gruesome spectacle.

13. The general rule is that the segregation of the witnesses in a criminal trial is ordinarily a matter within the discretion of the trial court.

14. Negligence or gross negligence is not an element of the crime of motor vehicle homicide.

15. A county attorney is not prohibited from becoming a witness in a criminal action.

16. In a criminal prosecution, any testimony, otherwise competent, which tends to dispute the testimony offered on behalf of the accused as to a material fact, is proper rebuttal testimony.

17. It is within the discretion of the court to permit in rebuttal the introduction of evidence not strictly rebutting.

18. Where the punishment of an offense created by statute is left to the discretion of a court, to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed unless there appears to be an abuse of discretion.

Dryden & Jensen, Kearney, Crosby, Pansing & Guenzel, Lincoln, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Gerald S. Vitamvas, Asst. Atty. Gen., for defendant in error.

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

YEAGER, Justice.

This is a criminal action wherein, in the district court for Buffalo County, Nebraska, Lawrence E. Pribyl was charged with the crime of motor vehicle homicide. The action was prosecuted in the name of the State of Nebraska by the deputy county attorney of Buffalo County. On trial of the case Pribly was convicted of the charge and was sentenced to a term of not less than 1 year nor more that 1 1/2 years in the Nebraska State Reformatory for Men. A motion for new trial, a supplemental motion for new trial, and a motion in arrest of judgment were filed. These motions were overruled. By petition in error Pribly seeks a reversal of the conviction and sentence. He will hereinafter be referred to as the defendant.

The statute which provides the basis for a prosecution such as this is in pertinent part as follows: 'Whoever shall cause the death of another without malice while engaged in the unlawful operation of a motor vehicle shall be deemed guilty of a crime to be known as motor vehicle homicide * * *.' Section 28-403.01, R.R.S.1943.

Before proceeding to a consideration of the grounds on which the defendant seeks a reversal it appears that it should be pointed out that the information charged in general terms that while he was engaged in the unlawful operation of a motor vehicle he caused it, without malice, to collide on a city street in Kearney, Nebraska, with the body of Vera Bartu, injuring her and causing her death. The thing which was unlawful in the operation is not described. This failure to describe or designate the thing which was unlawful was not attacked either before or at the trial.

The court, by its instruction No. 6, limited the area of consideration of unlawful operation by the jury to: (1) Operation of a motor vehicle on a highway at a speed in excess of what was reasonable and prudent under the then existing conditions, (2) speed in excess of 25 miles an hour in any city or village except when 25 miles an hour would be unsafe or was hazardous, (3) speed greater than was reasonable and proper with regard to traffic conditions and use on any road, avenue, or boulevard running within, through, or along the grounds of state institutions, and (4) operation while under the influence of alcoholic liquor. Of this instruction no complaint by assignment of error has been made.

The brief of the defendant contains numerous assignments of error. The primary contention however is that the admissible evidence is not sufficient upon which to base a finding that at the time and place in question the defendant was operating a motor vehicle unlawfully and that such unlawful operation was the proximate cause of the death of Vera Bartu. It is admitted that Vera Bartu came to her death as the result of the collision with a motor vehicle operated by the defendant, but the substantial contention of the defendant is that there has been a failure of proof that the operation was unlawful and the proximate cause of the death.

In an action of this kind the burden is upon the State to prove beyond a reasonable doubt that the person charged operated his motor vehicle in violation of one or more of the statutory provisions relating to the operation of motor vehicles. Hoffman v. State, 162 Neb. 806, 77 N.W.2d 592.

The burden is on the State also to prove that the unlawful act or acts were the proximate cause of the death. Birdsley v. State, 161 Neb. 581, 74 N.W.2d 377.

Facts about which there is no controversy, but which must be considered in determining whether or not the conviction in this case shall be sustained, are the following: On October 22, 1956, at about 7:30 p. m., Vera Bartu was standing on the north side of Twenty-sixth Street in Kearney, Nebraska, at a point directly south of a building on the grounds of the Kearney State Teachers College known as Case Hall. This street extends east and west and separates the buildings on the north from the main buildings of the college which are to the south. The place where she was standing was not in a cross walk but it was in an area not used for parking automobiles. To the east about 169 feet is Ninth Avenue which extends north and south. Vera Bartu started to cross over Twenty-sixth Street to the south or southwest and while she was crossing the defendant came from the east in a 1948 Plymouth automobile. The left front corner of the automobile struck her, as a result of which she was thrown through the air and westward the distance of about 75 feet, and the force of the impact caused her to be propelled on the surface of the street until she had reached a point about 170 feet from the point of the collision. On examination immediately thereafter it was found that she was dead. The defendant did not stop or reduce the speed of the automobile until he reached Eleventh Avenue which was to the west. He returned to the scene a few minutes later and reported that he was the operator of the automobile which struck Vera Bartu. Thereafter he was taken to a local hospital where with his consent blood samples were taken for the purpose of determining whether or not in his blood there was evidence of alcohol or of intoxication. Thereafter he was taken to the police station where he was interviewed and where observations were made of his appearance, his conduct, and his speech.

Other facts disclosed by the record are that within a few minutes after the collision Dr. O. R. Hayes appeared on the scene. It was he who took the blood samples. The analysis of the samples indicated an alcoholic content of 0.14 percent. This witness talked with and observed the defendant at the hospital and later at the police station. He related at length what took place on these occasions, the details of which it is not deemed necessary to set forth here. He also testified to a broad experience in the observation of persons under the influence of intoxicating liquor. At the conclusion of this foundation he was allowed over objection to give his opinion as to whether or not at the time in question the defendant was...