State v. Carpenter

• Decision Date: 21 April 1967
• Docket Number: No. 36507,36507
• Citation: 150 N.W.2d 129,181 Neb. 639
• Parties: STATE of Nebraska, Appellee, v. Stuart CARPENTER, Appellant.
• Court: Nebraska Supreme Court

Page 129

150 N.W.2d 129

181 Neb. 639

STATE of Nebraska, Appellee, v. Stuart CARPENTER, Appellant.

No. 36507.

Supreme Court of Nebraska.

April 21, 1967.

Syllabus by the Court

1. Any person charged with a criminal offense in the State of Nebraska is guaranteed, under the Constitutions of the United States and of this state, due process of law, which includes the right to trial by jury and the right to defend in person or by counsel.

2. The rights to trial by a jury and to be represented by counsel are personal privileges which may be waived, and Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007, is overruled on this point.

3. The policemen of a second-class city shall have power to arrest all offenders against the laws of the state or of the city, by day or by night, in the same manner as the sheriff or constable, and keep them in the city prison or other place, to prevent their escape, until trial can be had before the proper officer.

4. Constables shall be ministerial officers of the courts held by justices of the peace in criminal cases, within their respective counties, and it shall be their duty to apprehend and bring to justice felons and disturbers of the peace, to suppress riots, and to keep and preserve the peace within their respective counties. They shall have power and they are hereby authorized to execute all writs and process in criminal cases throughout the county in which they may reside and where they were elected or appointed.

5. Every temporary restriction of the absolute freedom of movement is not an arrest.

6. It is only by alertness to proper occasions for prompt inquiries and investigations that effective prevention of crime and enforcement of law is possible.

7. The existence of probable cause must be determined by a practical and not by any technical standard.

8. It is not a search to observe that which is open and patent either in daylight or in artificial light.

9. If, without a search and without an unlawful entry contraband is seen, the police are not required to close their eyes, walk away, and leave the article where they see it.

Kerrigan, Line & Martin, Fremont, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Merritt James, Miles W. Johnston, Jr., Lincoln, for amicus curiae.

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

SPENCER, Justice.

This is a felony action in which the defendant was prosecuted under two separate informations, one charging possession of burglary tools, and the other breaking and entering. On defendant's motion, the informations were consolidated for trial. Jury was waived by the defendant and the State, and the court, sitting without a jury, found the defendant guilty on both informations. Defendant has perfected an appeal to this court.

Essentially, the question presented by the defendant is legality of a search and seizure. The defendant concedes the evidence was sufficient to sustain a conviction if it was properly admitted. There are two other incidental questions involved, one of which is germane to the primary question, whether police officers of the city of Blair may stop a car just across and outside the city limits of Blair. The other question is whether a defendant may waive a jury in a felony case. We first address ourselves to this latter point.

As stated above, a jury was waived by both the defendant and the State. Defendant, who believes a jury was properly waived, suggests our consideration sua sponte because the case of Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007, which has never been expressly overruled, states: 'The judge of a district court has no jurisdiction to try and determine the guilt or innocence of a defendant charged with a felony who pleads not guilty, without a trial to a jury, and such jurisdiction cannot be conferred by consent of the accused.' That case held in essence that the right to a trial by jury, as encompassed by Article I, sections 6 and 11, of the Constitution of Nebraska, was designed for the protection of the state as well as the defendant, and may not be waived. We now determine that holding was made under a misapprehension of the nature of the right involved. The right to a jury trial is personal to the defendant, and the state is without power to require one if the defendant wishes to waive it.

Subsequently, but without expressly overruling Michaelson v. Beemer, supra, we abandoned the position there taken. In Johnson v. State, 169 Neb. 783, 100 N.W.2d 844, we held: 'Any person charged with a criminal offense in the State of Nebraska is guaranteed, under the Constitutions of the United States and of the state, due process of law, which includes the right to trial by jury and the right to defend in person or by counsel.

'The rights to trial by a jury and to be represented by counsel are personal privileges which may be waived.'

Johnson v. State, supra, and the citations therein are sufficiently clear on this issue, and no further explanation is necessary. We do, however, expressly overrule Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007, on this point.

The pertinent facts herein may be briefly summarized as follows: The defendant was driving his automobile, which was licensed in Dodge County, around the city of Blair sometime between 3 and 3:30 in the morning of April 12, 1966. He was accompanied by one Hawkins. His car was observed by two Blair police officers who were cruising in a patrol car. His car was first observed by the officers when they turned east off Nineteenth Street and onto Grant Street in the city of Blair. It was then coming slowly toward them from the east. When the officers reached Thirteenth Street, defendant's car was turning north onto Lincoln Street, which was two blocks east, so the officers turned north on Thirteenth Street and then noticed the car go across Lincoln Street on north, so they went north one more block and turned east on Washington Street. When they turned east, defendant's car was stopping for a stop sign at Washington Street, and it then turned east ahead of them. The officers followed the car, turned on their red right, and stopped defendant's car on the east of Ninth Street, in a bulk station driveway, just outside the Blair city limits. The officers then observed that defendant's car was an Oldsmobile, licensed in Dodge County.

The defendant got out of his car on the left side, came back to the left side of the patrol car, and was questioned by officer Austin. Officer Cowan went to the Oldsmobile when defendant approached the patrol car, and asked the passenger to step out which he did, and as he did his feet struck something on the floor which gave off a metallic sound. As the passenger descended, Cowan flashed his light through the open door and saw what he recognized as pry bars. Cowan then asked officer Austin to take a flashlight and look in the front seat of the car which he did. Austin also saw pry bars sticking out of a bag. Defendant, in response to a question, said that these were tools he used in his job. Defendant was then asked to drive his car to the police station which he did, followed by the police car.

The officers testified that there had been burglaries in the vicinity where the car was cruising, and that not too long before a local business in that area had been entered by the aid of a pry bar. They had instructions to note any car in the vicinity they didn't recognize. They were suspicious of a car cruising slowly in that neighborhood in the early morning hours, and particularly of the fact that it appeared to turn off when they approached it. They decided they should require the occupants to identify themselves.

The pry bars were sticking out of a bag in the front seat and were clearly visible to the eye when light was flashed into the front seat. The officers testified that they merely stopped the car for identification purposes. When they saw the pry bars they felt some investigation was necessary, and requested the occupants of the car to go to the police station. The officers called the sheriff who recognized defendant's associate as a known burglar with a previous conviction in Washington County. The defendant and his companion were then arrested and lodged in jail. Later that morning a search warrant was secured and the bag which was found to contain burglary tools was removed from the car.

It is the defendant's contention that the police officers were without statutory authority to act in an official capacity outside the territorial limits of the city. We do not agree with the defendant that an arrest was made at that time, so the question becomes one of whether the police officers had a right to stop the defendant's vehicle outside the city limits. Under the circumstances, we find they did.

We call attention to section 29--206, R.R.S.1943, which provides as follows: 'Every city, town or village marshal, lawfully holding such office, shall be the appropriate ministerial officer of the police court or mayor's court of the city or town or incorporated village, and as such shall have all the powers and be charged with all the duties of constables in the making of arrests, serving process and preserving the peace, as prescribed in criminal matters in sections 29--204 and 29--205.'

Section 17--118, R.R.S.1943, covering cities of the second class and villages provides: 'The policemen of the city shall have power to arrest all offenders against the laws of the state or of the city, by day or by night, in the same manner as the sheriff or constable, and keep them in the city prison or other place, to prevent their escape, until trial can be had before the proper officer.'

Further, section 29--204, R.R.S.1943, should also be considered. It provides: 'Constables shall be ministerial officers of the courts held by justices of the peace in criminal cases, within their respective counties, and it shall be...