State v. Brown, 39150
| Decision Date | 04 January 1974 |
| Docket Number | No. 39150,39150 |
| Citation | 213 N.W.2d 712,191 Neb. 61 |
| Parties | STATE of Nebraska, Appellee, v. Mary Rose BROWN, Appellant. |
| Court | Nebraska 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.
Defendant, Mary Rose Brown, appeals her conviction of violating an ordinance of the city of Omaha, which reads as follows: 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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