State v. Brown, 39150

Decision Date04 January 1974
Docket NumberNo. 39150,39150
Citation213 N.W.2d 712,191 Neb. 61
PartiesSTATE of Nebraska, Appellee, v. Mary Rose BROWN, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Embedded in the traditional rules governing constitutional adjudication is that a person to whom a statute may be constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the court.

2. A sentence imposed by a trial court within statutory limits ordinarily will not be disturbed on appeal in the absence of an abuse of discretion.

Walter J. Matejka of Gallup & Matejka, Omaha, for appellant.

Herbert M. Fitle, City Atty., Gary P. Bucchino, City Prosecutor, Richard J. Epstein, Asst. City Prosecutor, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

SPENCER, Justice.

Defendant, Mary Rose Brown, appeals her conviction of violating an ordinance of the city of Omaha, which reads as follows: '25.133.020. Indecent, lewd or filthy acts. It shall be unlawful for any person to commit any indecent, lewd or filthy act in any place in the City, or to utter any lewd or filthy words, or to sing any song, the words of which are suggestive of indecency or immorality, or use any threatening or abusive language in the hearing of other persons publicly, or to make any obscene gesture to or about any other person or persons publicly.' We affirm.

Defendant, in her brief, argues the sufficiency of the evidence, the overbreadth of the ordinance, and the excessiveness of the penalty. The evidence is fairly conclusive that defendant was engaged in oral copulation.

The difficulty with defendant's argument on overbreadth is that the issue was not raised in the trial court. Actually, the ordinance is not to be found in the record. We have set it out herein from the defendant's brief. The question is not properly before us. However, it is patent that the act complained of is within the terms of the ordinance set out in defendant's brief. Her conduct clearly was an indecent, lewd, or filthy act. Even if properly raised, the defense of unconstitutionality would not be available herein. Embedded in the traditional rules governing constitutional adjudication is that a person to whom a statute may be constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally...

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9 cases
  • Prendergast v. Nelson, 41199
    • United States
    • Supreme Court of Nebraska
    • July 20, 1977
    ...Ordinarily a litigant can question a statute's unconstitutionality only when it is being applied to his disadvantage. State v. Brown, 191 Neb. 61, 213 N.W.2d 712 (1974). The various questions herein are raised by way of answer to the petition of the plaintiffs in seeking to require the defe......
  • In re Interest of J.R., S-07-1300.
    • United States
    • Supreme Court of Nebraska
    • March 13, 2009
    ...71. See, State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987); State v. Greaser, 207 Neb. 668, 300 N.W.2d 197 (1981); State v. Brown, 191 Neb. 61, 213 N.W.2d 712 (1974). 72. See Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006). 73. See Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265,......
  • State v. Harig
    • United States
    • Supreme Court of Nebraska
    • June 6, 1974
    ...on appeal unless there appears to be an abuse of discretion. State v. Cano, 191 Neb. 709, 217 N.W.2d 480 (1974); State v. Brown, 191 Neb. 61, 213 N.W.2d 712 (1974); State v. McCowin, 191 Neb. 31, 213 N.W.2d 724 (1973). Here, the sentence imposed was clearly within the statutory limits estab......
  • State v. Sprague, 82-369
    • United States
    • Supreme Court of Nebraska
    • February 25, 1983
    ...applied unconstitutionally to others in situations not before the court." Id. at 669-70, 300 N.W.2d at 198. See, also, State v. Brown, 191 Neb. 61, 213 N.W.2d 712 (1974). Since the defendant was on notice that his conduct was prohibited, under the rules cited above, he has no standing to ma......
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