State v. Nichols, 35472
| Decision Date | 18 October 1963 |
| Docket Number | No. 35472,35472 |
| Citation | 175 Neb. 761,123 N.W.2d 860 |
| Parties | STATE of Nebraska, Appellee, v. Raymond J. NICHOLS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. It is not the province of this court in a criminal case to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.
2. In a criminal action this court will not interfere with a verdict of guilty based upon conflicting evidence unless the evidence is so lacking in probative force that as a matter of law it is insufficient to support a finding of guilt beyond a reasonable doubt.
3. In order to warrant a conviction on circumstantial evidence, the circumstances taken together must be of such conclusive nature and tendency as to produce a reasonable and moral certainty that the accused committed the offense charged beyond a reasonable doubt.
4. In determining the weight of circumstantial evidence, a jury must find that the facts and circumstances are of such a conclusive nature as to exclude to a moral certainty every other rational hypothesis except that of guilt of the accused.
5. An instruction with respect to circumstantial evidence is not in error when it states that if all of the facts and circumstances relied upon by the State to secure a conviction can reasonably be accounted for upon any theory consistent with the innocence of the defendant, then the jury should acquit him.
Robert V. Burkhard, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.
This is a criminal action brought by information against the defendant, Raymond J. Nichols, charging him with leaving the scene of an accident involving personal injury or death in violation of section 39-762, R.R.S.1943.
Two questions are presented by the appeal:
1. That the verdict is not sustained by sufficient evidence.
2. That the court committed prejudicial error in giving instruction No. 8 relating to circumstantial evidence.
The evidence for the State discloses that the defendant, on the afternoon of August 4, 1962, picked up one Velma Byrd in his 1954 yellow and white Buick, drove to Nineteenth and Leavenworth Streets, Omaha, Nebraska, parked his car and put the keys in his pocket, together with Byrd spent the early part of the afternoon in a friend's apartment, and later all three retired to the Russell Bar immediately below the friend's apartment and continued the drinking which had begun earlier in the friend's apartment. Arguments ensued between Byrd and the defendant. The defendant left and went to another bar, and Byrd and the friend, Turner, followed. After some conversation, Byrd and Turner left, and the defendant left about a half hour later and returned to the Russell Bar where he encountered Byrd and Turner again at about 12:30 a. m. on August 5, 1962. The defendant and Byrd argued and he slapped Byrd and tore her blouse, following which the defendant was escorted out of the bar by two bartenders, one of whom was Dennis Parr. Byrd, fearful that the defendant would assault her, stayed in the bar with Turner until closing time, 1 a. m. Shortly after 1 a. m., Parr, the bartender, while he was outside dumping refuse, heard the screeching of brakes, heard a crash, and as he rounded the corner running observed a vehicle a few feet from the east curb of Nineteenth Street, and about 15 feet south of the intersection with Leavenworth Street, facing east, and observed a man lying on Nineteenth Street near the east curb, his head directly in front of the vehicle. The vehicle backed up and Parr came up to within a foot or two of the vehicle, looked inside, and saw the driver whom he immediately recognized as the defendant. Byrd, narrowly missing being hit, also identified the defendant. Parr yelled, 'don't run,' but the defendant left the scene, driving north on Nineteenth Street without identifying himself to the person struck and without rendering him assistance. Parr telephoned the rescue squad, returned to the scene, and observed that the person struck was bleeding around the head and face and appeared to be unconscious. The rescue squad arrived and Adolph Jansenius, the person struck, was removed to the county hospital.
The applicable rule in this case with reference to the question of the sufficiency of the evidence was stated recently in State v. Wilson, 174 Neb. 86, 115 N.W.2d 794, as follows: ...
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State v. Ohler
...the crime charged are of such conclusive nature as to exclude every reasonable hypothesis except that of his guilt.' In State v. Nichols, 175 Neb. 761, 123 N.W.2d 860, we said: 'In order to warrant a conviction on circumstantial evidence, the circumstances taken together must be of such con......
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State v. Keadle
... ... 189, 505 N.W.2d 673 (1993) ... [ 13 ] State v. Babajamia, 223 Neb ... 804, 394 N.W.2d 289 (1986) ... [ 14 ] State v. Nichols, 175 Neb ... 761, 123 N.W.2d 860 (1963) ... [ 15 ] Edwards, supra note ... [ 16 ] Id. See, also, State v ... Stubbendieck, 302 Neb ... ...
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State v. Sheldon
...instruction to the jury upon the circumstantial evidence rule. The instruction given conformed to the rules stated in State v. Nichols, 175 Neb. 761, 123 N.W.2d 860, and State v. Ohler, 178 Neb. 596, 134 N.W.2d The defendant also complains that the sentences are excessive. The defendant was......
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Michelsen v. Upton
... ... 654, 243 N.W. 861, which is the only decision in this state wherein this court had occasion to speak upon the subject, the court said: 'It clearly devolved ... ...