State v. Dubany

• Decision Date: 25 April 1969
• Docket Number: No. 37095,37095
• Citation: 184 Neb. 337,167 N.W.2d 556
• Parties: STATE of Nebraska, Appellee, v. Oliver R. DUBANY, Appellant.
• Court: Nebraska Supreme Court

Page 556

167 N.W.2d 556

184 Neb. 337

STATE of Nebraska, Appellee, v. Oliver R. DUBANY, Appellant.

No. 37095.

Supreme Court of Nebraska.

April 25, 1969.

Syllabus by the Court

1. The word 'operate' as used in section 39--727, R.R.S.1943, relates to the actual physical handling of the controls of a motor vehicle by a person while under the influence of intoxicating liquor.

2. The requirement that the names of witnesses for the State must be endorsed upon the information has no application to rebuttal witnesses.

3. In on-the-scene investigations the law enforcement officers may interview any person not in custody and not subject to coercion, for the purpose of determining whether a crime has been committed and who committed it; and such interview would not be a violation of one's constitutional rights.

Wm. S. Padley, Ogallala, for appellant.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., CARTER, SPENCER, SMITH, McCOWN and NEWTON, JJ., and KOKJER, District Judge.

KOKJER, District Judge.

The amended information filed in this case charged that on July 8, 1967, in Cherry County, Nebraska, the defendant Oliver R. Dubany unlawfully operated or was in actual physical control of a motor vehicle while he was under the influence of alcoholic liquor.

At the trial, officer C. L. Zurcher testified that at approximately 4:15 p.m., on July 8, 1967, on U.S. Highway No. 20 about 10 1/10 miles west of Wood Lake, in Cherry County, Nebraska, he saw a pickup truck in the ditch on the lefthand side of the road; that one man was in the pickup under the wheel; that the gears were in operation, the wheels were turning, and the sand was flying; that the pickup was jumping up and down, backwards, and forward, but was not actually going anywhere; and that the pickup appeared to be stuck in the sand. Officer Zurcher asked the man for his driver's license and, upon receiving it, checked it over. He then asked the man if he had been drinking, and the man said, 'Yes.' The officer identified the man as the defendant Oliver R. Dubany. He asked the defendant to shut off the switch and get out of the car, which he did. The officer then asked defendant to go with him to the patrol car. He observed defendant walking and helped him as he was having trouble walking or staggering. Defendant appeared not to be feeling well. His eyes were bloodshot, his speech was slurred, and he had a very strong odor of alcohol on his breath. After defendant was in the patrol car he had trouble staying awake and, in fact, he fell asleep before officer Russell Luth, who had been called by radio, came in his patrol car to take him to Valentine. Officer Zurcher further testified that in his opinion defendant was under the influence of alcoholic liquor.

Officer Luth observed defendant as they put him in his patrol car, as he took him to Valentine, where a sample of defendant's blood was taken, and when he was placed in jail. In his opinion defendant was intoxicated. The blood sample was tested as provided by statute and contained .27 percent of alcohol by weight.

After the State completed its case-in-chief the defense adduced testimony of defendant and an employee, Lloyd DeCent, to the effect that defendant had not been drinking any alcoholic liquor up to the time he left Wood Lake earlier in the afternoon of July 8, 1967. Defendant testified he left Wood Lake in the pickup while the employee DeCent and another regular employee, Ed Murray, and two local boys who had been hired to help, were loading a larger truck with store fixtures which defendant had purchased. Defendant stated that as he proceeded west on U.S. Highway No. 20 he came to a curve and there met a pickup coming from the west which was pretty well across the white line on the paving; and that defendant tried to give him some room and got the front wheel of his pickup off into the sand and went down into the 'bar pit' where he became stuck. He was unable to get his pickup out. It was hot and he had nothing to drink, so he got to nibbling on a quart bottle of whisky which contained a half pint or 'maybe a little less,' that he had in his pickup. He then threw the empty bottle away. He said that after he drank the liquor he did not operate the pickup because there was no way he could get loose.

Witness DeCent testified that after they finished loading and paid the two boys he drove the larger truck west on U.S Highway No. 20 and came to the place where defendant was stuck. He and the other employee, Ed. Murray, tried to get defendant's pickup out but it was impossible. When they arrived defendant had been drinking. He said it was 'an awfully terrible hot day that afternoon.' DeCent asked defendant if he had been drinking; and defendant replied that he got thirsty, that he had found a bottle of whisky in the car, and that he took a drink out of it to try to quench his thirst. The state trooper arrived about 8 or 10 minutes after DeCent and Murray. The trooper at that time found defendant behind the wheel, gears of the pickup in operation, the wheels turning, the sand flying, and the pickup jumping up and down, backwards and forward, but not actually going anywhere.

Richard E. Sokol, who runs a service garage, was called to the scene by the patrolman. He testified that he had to use a winch to get the pickup out of the sand.

After the defense rested the State called Garret Luth to the stand for rebuttal testimony. Defendant objected on the ground that his name had not been endorsed on the information as a witness. The...