Wagner v. State

• Decision Date: 30 December 1925
• Docket Number: 24798
• Citation: 206 N.W. 732,114 Neb. 171
• Parties: EDWARD WAGNER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

206 N.W. 732

114 Neb. 171

EDWARD WAGNER v. STATE OF NEBRASKA

No. 24798

Supreme Court of Nebraska

December 30, 1925

ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Reversed and dismissed.

Judgment reversed, and the cause dismissed.

John C Mullen, for plaintiff in error.

O. S Spillman, Attorney General, and Lee Basye, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

THOMPSON, J.

This case comes here on petition in error from the district court for Richardson county, where Edward Wagner, hereinafter called defendant, was tried upon the information below quoted, and the plea of not guilty thereto. Omitting the formal parts, the information charges:

Defendant "did then and there unlawfully and feloniously drive and operate a motor vehicle, to wit, a Studebaker automobile, at a greater rate of speed than thirty-five (35) miles per hour, to wit, more than fifty (50) miles per hour within the city of Falls City within said county and state and in so recklessly and carelessly driving and operating said automobile collided with and struck one Otto Gurschke, by reason of which the said Otto Gurschke was seriously injured in that his skull was thereby fractured and he sustained other serious and painful injuries."

Defendant was found guilty, and a fine of $ 500 imposed.

Several alleged errors are relied upon for reversal, but we find it necessary to consider only two of them, namely: That the information fails to charge an offense under the statute; the verdict is not sustained by the evidence.

Does the information charge an offense? A motion to quash on the ground that it does not charge an offense was made by defendant and was overruled. It is admitted that the sections of the statute necessary for our consideration are sections 8392 and 8396, Comp. St. 1922, that part of the former material to this case being as follows:

"No person shall operate a motor vehicle on any highway outside of a city or village at a rate of speed greater than is reasonable and proper, having regard for the traffic and use of the road and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person, nor in any case at a rate of speed exceeding thirty-five miles per hour; and within any city or village no motor vehicle shall be operated at a rate of speed greater than is reasonable and proper, having regard of the traffic and use of the road and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person."

Section 8396, supra, reads as follows: ...