State v. Schott

• Decision Date: 04 April 1986
• Docket Number: No. 85-313,85-313
• Citation: 222 Neb. 456,384 N.W.2d 620
• Parties: STATE of Nebraska, Appellee, v. John W. SCHOTT, Appellant.
• Court: Nebraska Supreme Court

Page 620

384 N.W.2d 620

222 Neb. 456

STATE of Nebraska, Appellee, v. John W. SCHOTT, Appellant.

No. 85-313.

Supreme Court of Nebraska.

April 4, 1986.

Syllabus by the Court

1. Intent: Words and Phrases. Intentionally means willfully or purposely, and not accidentally or involuntarily.

2. Intent: Words and Phrases. Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. Neb.Rev.Stat. § 28-109(19)(Reissue 1979).

3. Intent: Words and Phrases. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

4. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury--all of which is within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

5. Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt. The State is not required to disprove every hypothesis but that of guilt.

6. Evidence: Verdicts: Appeal and Error. The Supreme Court will not interfere with a guilty verdict based on evidence, unless that evidence, so lacking probative force, is insufficient to support a verdict beyond a reasonable doubt.

7. Criminal Law: Courts: Appeal and Error. Appeals in criminal cases tried in a county court are governed by Neb.Rev.Stat. § 29-613 (Reissue 1979), and are restrictively disposed on the basis of the record made in the county court.

8. Criminal Law: Courts: Appeal and Error. A district court's review of criminal cases tried in a county court is limited to an examination of the record for error or an abuse of discretion which occurred in the county court.

9. Criminal Law: Sentences: Courts: Appeal and Error. A district court may modify a sentence imposed by a county court only where the county court has so abused its discretion as to render its sentence an error upon the record presented.

Cunningham, Blackburn, VonSeggern, Livingston & Francis, Grand Island, for appellant.

Robert M. Spire, Atty. Gen., and Dale D. Brodkey, Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

SHANAHAN, Justice.

A jury in the county court for Polk County convicted John W. Schott of two counts of cruelty to animals in violation of Neb.Rev.Stat. § 28-1002 (Reissue 1979). Schott appealed his conviction and sentence to the district court, which affirmed Schott's conviction but modified the sentence imposed by the county court. We affirm in part and in part reverse and remand for further proceedings.

The complaint filed against Schott charged him with two counts of cruelty to livestock in the winter of 1983-84.

Section 28-1002 provides in part:

(1) A person commits cruelty to animals if, except as otherwise authorized by law, he intentionally or recklessly:

(a) Subjects any animal to cruel mistreatment; or

(b) Subjects any animal in his custody to cruel neglect....

Statutory definitions applicable to the charges against Schott are:

(2) Cruel mistreatment shall mean every act or omission which causes, or unreasonably permits the continuation of, unnecessary or unjustifiable pain or suffering;

(3) Cruel neglect shall mean failure to provide food, water, protection from the elements, opportunity to exercise, or other care normal, usual, and proper for an animal's health and well-being....

Neb.Rev.Stat. § 28-1001 (Reissue 1979).

Schott, 49, has raised cattle and hogs for 30 years and conducted his livestock operations on a 400-acre tract 5 miles from his residence near Osceola. That tract included a 185-acre pasture of native grasses and buildings for hogs. In the autumn of 1983 Schott had to supplement his pasture because cattle had grazed to the point that the grasses were "short," approximately 1 inch. On the weekend after Thanksgiving 1983, a blizzard struck Schott's operations. Between Thanksgiving and January 1984, according to Schott, 10 of his hogs and 34 head of cattle died.

On December 9, 1983, Timothy Siemek, Polk County sheriff, received a telephone call from one of Schott's neighbors, informing the sheriff that several dead or starving cattle were visible from the county road near Schott's pasture. From the road at Schott's livestock operations, Sheriff Siemek saw two cattle carcasses in the pasture, contacted Schott, and asked about his care given to the cattle. Schott responded that he was taking care of his livestock with daily watering and feeding, although he was having trouble with snowmobilers on his property. As Sheriff Siemek and a deputy drove past Schott's pasture and hog facility on December 12, they saw four dead cattle, including two carcasses which had been observed on December 9. The sheriff, in the company of his deputy and Schott, who had consented to the entry, went into the pasture, where there were eight or nine cattle carcasses and a cow alive but "extremely thin and boney." A frozen pond was the only water supply. No action was taken until a neighbor's second complaint on December 19, after which the sheriff again contacted Schott about care of his cattle. Schott said he would have the cattle removed to a commercial feedlot.

After another neighbor's complaint, this time about Schott's hogs, on January 11 the sheriff paid his third visit to Schott's, where he saw two dead cattle near a driveway and some "very thin" hogs. Siemek directed Schott to "dispose of the hogs or move them back to his home place where he could take better care of them." When Siemek drove by the livestock area on January 23, he neither saw nor heard hogs on the place. With a search warrant and Dr. James Varney, a local veterinarian, Sheriff Siemek went to Schott's cattle and hog operation on January 25, entered the pasture, discovered 40 dead cattle, with "very thin, skin ... pulled tight [with] pin bones ... very noticable [sic] in the larger cattle." Cedar trees in the pasture were "devoid of any foliage" and had "no needles, cedar needles," to a height of 6 feet. Thorny gooseberry bushes, normally 3 to 4 feet tall, were eaten to a height of 1 foot. There were no cattle alive. While inspecting buildings used for hogs, Siemek found four dead hogs in one building, three other carcasses in a second building, no food in the feeders, no bedding for the hogs, and partially eaten hog carcasses. One hog was eating the remnants of another hog. On later inquiry by the sheriff, Schott said that several hogs had died after they had fallen from an elevated feeding platform and were unable to reach food.

With another search warrant Sheriff Siemek returned to Schott's on January 26. Accompanying the sheriff were an investigator for the Nebraska Brand Committee, Dr. Varney, and two additional veterinarians, Dr. Alan Doster and Dr. Rodney Moxley, both professors in the College of Agriculture at the University of Nebraska-Lincoln.

Dr. Doster, a veterinarian-pathologist, was called upon to perform necropsies on the animals. A necropsy is the "animal term for autopsy," or a post mortem examination to determine the cause of an animal's death. During necropsies, Dr. Varney used a stick to drive off hogs trying to eat the organs eviscerated from the "posted" animals. Necropsies disclosed that some hogs had empty stomachs except for feces which had been eaten. There was no running water or bedding, and the depth of manure was 6 inches at the hog facilities. The ribs on cattle carcasses protruded "very much." Tree branches had been eaten to a height of 5 or 6 feet above ground. Cedar branches had been eaten--an extraordinary occurrence. Because cedars have aromatic hydrocarbons, such as those found in turpentine, "animals will not eat cedar trees unless they absolutely have to." The contents of rumen (the first compartment of a bovine stomach) usually have the "consistency of watery oatmeal," but in the carcasses at Schott's the rumen contents were "all balled up," an indication of dehydration. Dr. Doster concluded that Schott's "animals had been suffering from malnutrition; and, probably had died as a result of malnutrition, coupled with the weather, management procedures, and also the lack of water." As explained by Dr. Doster, animals need a greater quantity of food during cold weather in order to generate and maintain energy for suitable body temperature. Cold weather produces an increase in an animal's appetite and a decrease in the animal's efficiency in converting food into energy. Malnutrition causes pain to animals. When Schott's animals were deprived of sufficient food, water, care, and shelter, the extreme cold weather brought "everything to an apex and killed these animals." Normal death loss, under weather conditions prevailing when Schott's livestock died, was less than 3 percent. Death loss at more than 3 to 4 percent indicated "there is something wrong."

Dr. Rodney Moxley, a diagnostic veterinarian, found nothing toxic or infectious as a result of necropsies. Intestinal tracts of the cattle carcasses were "devoid of food contents." Dr. Moxley noted carcasses in a state of "sternal recumbency"--an animal's position on the ground with its chest "straight up and...