State v. Fleming, 36552
| Decision Date | 10 November 1967 |
| Docket Number | No. 36552,36552 |
| Citation | 182 Neb. 249,154 N.W.2d 65 |
| Parties | STATE of Nebraska, Appellee, v. Henry C. FLEMING, Appellant. |
| Court | Nebraska Supreme Court |
Donald R. Grant, Lincoln, for appellant.
Ralph Nelson, City Atty., Fred J. Swihart, City Prosecutor, Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
Defendant was convicted by a jury of operating a motor vehicle while under the influence of alcoholic liquor. He has perfected an appeal to this court, setting out six assignments of error. We sustain the first assignment of error, and deem it unnecessary to consider the others.
The first assignment of error is as follows: 'The Court erred in overruling Defendant's motion for mistrial made during testimony of Officer Jerry L. Thomas.'
After the defendant's arrest, he was transported to a hospital for the purpose of drawing blood for a blood test. The objection is directed at an alleged statement made by the defendant to the police officers on the way to the hospital. The questioned testimony is as follows:
Defendant immediately moved for a mistrial. This motion was overruled, and the jury was instructed to disregard the statement.
A previous arrest for drunken driving is clearly irrelevant evidence, and in this trial must be considered prejudicial. In McKay v. State, 90 Neb. 63, 132 N.W. 741, 39 L.R.A.,N.S., 714, Ann.Cas.1913B, 1034, we said: 'An accused in a criminal prosecution is entitled to a trial upon competent, relevant evidence; evidence which at least tends to establish his guilt or innocence; and evidence which has no such tendency, but which, if effective at all, could only serve to excite the minds and inflame the passions of the jury should not be admitted.'
As we view the record, the admonition to disregard the statement does not eliminate the prejudice. The poison has been injected; the damage has been done. The...
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State v. Wilson
...at all, could only serve to excite the minds and inflame the passions of the jury should not be admitted." State v. Fleming, 182 Neb. 249, 154 N.W.2d 65, at 66 (1967); accord, People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436 (1964); People v. Tassiello, 300 N.Y. 425, 91 N.E.2d 872 'A funda......
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State v. Sharp
...of crimes other than that with which the accused is charged is not generally admissible in a criminal prosecution.' In State v. Fleming, 182 Neb. 249, 154 N.W.2d 65, we said: 'The statement could have no legitimate bearing on the question of the guilt or innocence of the defendant in the pr......
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State v. Martin, 41137
...its probative value was substantially outweighed by the danger of unfair prejudice. See, s. 27-403, R.R.S.1943; State v. Fleming, 182 Neb. 249, 154 N.W.2d 65 (1967). The testimony itself was in no way prejudicial because it consisted only of a statement that Patty had no recollection of the......