State v. Snell, 35680
| Decision Date | 12 June 1964 |
| Docket Number | No. 35680,35680 |
| Citation | 177 Neb. 396,128 N.W.2d 823 |
| Parties | STATE of Nebraska, Appellee, v. Ray W. SNELL, 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. A voluntary statement made by the defendant at a preliminary examination before a magistrate is admissible as an admission or confession at a subsequent trial.
3. In the absence of a showing that the defendant was represented by counsel, or of an effective waiver of the right to counsel, evidence that the defendant entered a plea of guilty at a preliminary examination in the county court was not admissible.
4. Where the guilt of a defendant depends upon the intent, purpose, or design with which the act was done, or upon guilty knowledge thereof, collateral facts in which he bore a part occurring before and leading up to the transaction complained of may be examined for the purpose of establishing such guilty intent, design, purpose, or knowledge, even though such facts show the commission of another crime.
5. A defendant may not predicate error on the admission of evidence to which no objection is made at the time it is offered.
6. Knowledge that an accident has happened and that an injury has been inflicted is an essential element of the crime of leaving the scene of a personal injury accident in violation of section 39-762, R.R.S.1943.
Dean L. Donoho, Valentine, for appellant.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
The defendant, Ray W. Snell, was convicted of leaving the scene of a personal injury accident in violation of section 39-762, R.R.S.1943. His motion for new trial was overruled and he has appealed.
The defendant assigns as error the insufficiency of the evidence to sustain the conviction, the failure to grant a mistrial for misconduct of the county attorney, the admission of certain evidence, the failure to give instructions requested by the defendant, and the giving of certain instructions by the trial court upon its own motion.
Section 39-762, R.R.S.1943, provides as follows:
The State produced evidence that on October 21, 1962, at approximately 1:10 a. m., Vern C. Omer, a state safety patrolman, had stopped a motor vehicle on U. S. Highway No. 20 at a point approximately 3 1/2 miles east of Crookston in Cherry County, Nebraska. The motor vehicle which patrolman Omer had stopped was parked on the highway near the south edge of the paved portion of the highway. The patrol vehicle was parked to the rear of the motor vehicle which had been stopped and the right wheels of the patrol vehicle were 2 or 3 feet onto the south shoulder of the highway. Both vehicles were headed east. The headlights on both vehicles were lighted and the blinker lights on the patrol vehicle were turned on. As patrolman Omer was preparing to get out of the patrol vehicle, a 1957 bluish-green Chevrolet coming from the west struck the left rear of the patrol vehicle, forcing it forward and into the rear of the motor vehicle which was parked in front of the patrol car. The collision resulted in severe damage to both the front and rear of the patrol vehicle and patrolman Omer received neck and back injuries in the accident.
The 1957 Chevrolet which collided with the patrol vehicle did not stop but continued to the east on U. S. Highway No. 20. Patrolman Omer called Valentine, Nebraska, by radio and reported the accident. He gave a description of the 1957 Chevrolet which had collided with the patrol vehicle and requested assistance to stop that automobile. The Cherry County sheriff's office then notified G. D. Essley, a state safety patrolman, that the accident had occurred.
Patrolman Essley talked with patrolman Omer by radio and received a description of the automobile that had collided with the patrol vehicle. At approximately 1:25 a. m., patrolman Essley observed the defendant driving a 1957 blue Chevrolet east on U. S. Highway No. 20. Patrolman Essley and the sheriff stopped the defendant at a point approximately 2 miles west of Valentine, Nebraska. The right front of the defendant's automobile was severely damaged and only the left headlight was operating. The defendant was the only person in the automobile and he appeared to be intoxicated. The defendant was arrested and taken to Valentine.
The evidence which has been summarized, although circumstantial, was sufficient, if believed, to sustain a finding that the defendant was guilty of a violation of section 39-762, R.R.S.1943. The defendant produced evidence which tended to show the contrary. The result is that it was a question for the jury as to whether the defendant was guilty as charged. 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. State v. Nichols, 175 Neb. 761, 123 N.W.2d 860.
In his opening statement the county attorney advised the jury that the defendant had been charged with operating a motor vehicle while under the influence of alcoholic liquor and with leaving the scene of a personal injury accident, and that the defendant had appeared in court and entered a plea of guilty to both counts. The defendant immediately moved for a mistrial, but the motion was overruled.
During the trial patrolman Essley was allowed to testify, over objection, that the defendant had pleaded guilty in the county court to driving under the influence of intoxicating liquor and leaving the scene of a personal injury accident. The defendant contends that this evidence was not admissible, that the defendant's objection to the evidence should have been sustained, and that it was misconduct for the county attorney to refer to this evidence in his opening statement.
If the evidence was admissible, it was not misconduct for the county attorney to refer to it in his opening statement. If the evidence was not admissible, it was highly prejudicial to the defendant and the judgment must be reversed. Consequently, the only question which requires consideration here is whether the evidence was admissible.
Under the previous decisions of this court, the testimony in question would be admissible. A voluntary statement made by the defendant at a preliminary examination before a magistrate is admissable as an admission or confession at a subsequent trial. Adams v. State, 138 Neb. 613, 294 N.W. 396. Evidence that the defendant admitted that he was driving while under the influence of intoxicating liquor at the time the accident occurred would be admissible as a circumstance tending to show a reason for not stopping at the scene of the accident. Where the guilt of a defendant depends upon the intent, purpose, or design with which the act was done, or upon guilty knowledge thereof, collateral facts in which he bore a part occurring before and leading up to the transaction complained of may be examined for the purpose of establishing such guilty intent, design, purpose, or knowledge, even though such facts show the commission of another crime. Yost v. State, 149 Neb. 584, 31 N.W.2d 538.
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