Shanahan v. State, 33939

• Decision Date: 25 May 1956
• Docket Number: No. 33939,33939
• Citation: 77 N.W.2d 234,162 Neb. 676
• Parties: Bernard F. SHANAHAN, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 234

77 N.W.2d 234

162 Neb. 676

Bernard F. SHANAHAN, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 33939.

Supreme Court of Nebraska.

May 25, 1956.

Syllabus by the Court.

1. Where a case is presented upon the transcript alone, without a bill of exceptions, instructions given to the trial jury by the district court will be presumed to be correct, unless they missate the law and contain propositions which could not be held correct in any possible case made by the proof under the complaint or information upon which the prosecution was founded, all presumptions being in favor of the regularity of the proceedings of the district court.

2. When no bill of exceptions, showing the evidence, is presented on review, instructions that might have been proper under any evidence that might have been legally admissible under the pleadings or information will not be held prejudicial and erroneous. The presumption of law is in favor of the instructions.

3. Instructions are to be considered together to the end that they may be properly understood, and, when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated on the giving of the same.

Dryden & Jensen, Kearney, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

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

MESSMORE, Justice.

This is a criminal action originally instituted in the county court of Merrick County by the State of Nebraska as plaintiff against the defendant Bernard F. Shanahan. By complaint duly filed it was charged that Shanahan committed the offense of operating a motor vehicle in said county while under the influence of intoxicating liquor. He was tried in the county court and convicted of the offense charged against him. From this conviction he appealed to the district court where he was tried before a jury. The jury returned a verdict finding him guilty of the charge. Following conviction he filed a motion for new trial which motion was overruled. Following the overruling of the motion for new trial he was sentenced to pay a fine of $100, his motor vehicle operator's license was suspended for 6 months, and court costs were taxed against him. From this sentence and judgment the defendant has come to this court by petition in error seeking a reversal of the judgment and sentence. Shanahan is plaintiff in error but will be referred to hereinafter as defendant. The State of Nebraska is defendant in error and will be referred to as the State.

The defendant predicates error on the part of the trial court in giving instruction No. 4 on its own motion to the jury. Instruction No. 4 reads as follows: 'A person is intoxicated or is under the influence of alcoholic liquor if such person is under the influence of alcoholic liquor to such an extent as to have lost to an appreciable degree the normal control of his body and mental faculties.'

In this connection, the defendant cites Freeburg v. State, 92 Neb. 346, 138 N.W. 143, 144, Ann.Cas.1913E, 1101. In the cited case the court defined 'intoxicated' as follows: "The word 'intoxicated' is synonymous with 'drunk,' and in the Standard Dictionary 'drunk' is defined as under the influence of intoxicating liquor to such an extent as to have lost the normal control of one's bodily and mental faculties, and commonly to evince a disposition to violence, quarrelsomeness and bestiality.' 4 Words and Phrases, 3734. 'The 'intoxication' means an abnormal mental or physical condition, due to the influence of alcoholic liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions or energies. This implies a condition which would not result from the reasonable, ordinary, and moderate use of the most intoxicating liquors." The court instructed the jury that where a person is under the influence of intoxicating liquor to such an extent that it affects him mentally or physically, and that such effect resulting from the use of intoxicating liquor is visible to one observing such person, then as a matter of law said person would be in a drunken or intoxicated condition. In criticizing the instruction, the court said: 'It makes the mere fact that the effect resulting from the use of intoxicating liquor is visible, sufficient evidence that the person is drunk.'

The defendant's contention is that instruction No. 4, given by the trial court on its own motion in the instant case,...