Wells v. State

• Citation: 152 Neb. 668,42 N.W.2d 363
• Decision Date: 20 April 1950
• Docket Number: No. 32759,32759
• Parties: WELLS v. STATE.
• Court: Supreme Court of Nebraska

Page 363

42 N.W.2d 363

152 Neb. 668

WELLS v. STATE.

No. 32759.

Supreme Court of Nebraska.

April 20, 1950.

Syllabus by the Court.

1. Only judgments and sentences of the district court upon convictions for felonies and misdemeanors under the criminal code may be brought to this court by petition in error.

2. A prosecution for violation of a city ordinance, which does not include an offense made criminal by a statute of this state, is a civil procedure to recover a penalty, and a judgment and sentence therein may be reviewed in this court only by appeal.

3. A municipal court will take judicial notice of the ordinances of the city because it has a like relation thereto as do courts of general jurisdiction toward the general laws of the state.

4. On appeal of a conviction in a municipal court of a violation of an ordinance, the district court will take notice of the facts the former could have noticed judicially before the removal of the case.

5. A judgment of the district court in such a case will on appeal to this court be accorded the usual presumptions of regularity, and it will be presumed, nothing appearing to the contrary, that facts before that court established that the matters stated in the complaint constituted a violation of the ordinance of the city.

6. In this state no age is fixed by statute below which a child is presumed to be incompetent to testify. This is a matter committed to the sound legal discretion of the trial judge.

7. The reception of improper evidence in a case tried by the court without a jury is not ground for a reversal, if there is competent evidence sufficient to sustain the findings of the court.

8. The character of a litigant may be put in issue by evidence of his general reputation in the community where he resides in reference to the particular trait or kind of character involved in the case, but evidence of his real qualities as conceived by the witness or of particular facts concerning the litigant is not admissible.

9. The greater weight of the evidence, not proof beyond a reasonable doubt, is required to sustain a conviction of violation of a city ordinance not based upon an offense made criminal by the laws of the state.

10. Findings of the district court in a case tried without a jury are entitled to the weight, effect, and consideration of a verdict of a jury.

Ralph R. Bremers, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., William T. Gleeson, Asst. Atty. Gen., Charles A. Fryzek Jr., Omaha, for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellant was in the municipal court of the city of Omaha charged with and convicted of violation of an ordinance prohibiting indecent conduct within the city. He appealed to the district court, waived a jury trial, was tried, convicted, and adjudged to pay a fine and the costs. His motion for a new trial was denied. He has appealed from that judgment and sentence, and has also filed a petition in error in this court.

The offense charged against appellant as stated in the complaint is that he on about the 15th day of July, 1949, in the city of Omaha, 'tried to perform indecent acts with Marolys (Marolyn) Darling in violation of' an ordinance of the city. Indecent acts or attempts to perform such acts are not made an offense by any statute of this state. This is a civil proceeding to recover a penalty for the violation of an ordinance, and appeal is the proper procedure to obtain a review in this court of the conviction and sentence of appellant. State v. Neimer, 147 Neb. 284, 23 N.W.2d 81. The petition in error was improvident and should be dismissed. Section 25-1912, R.R.S.1943.

The complaint contains all the information in the record as to the ordinance therein described. This is not important in this case because courts of municipal corporations take judicial notice of ordinances thereof. They have the same relation to municipal laws as do courts of general jurisdiction toward the general laws of the state. On appeal from a conviction in a municipal court of a violation of a city ordinance, the district court will, upon a trial de novo, take notice of whatever facts the former could have noticed judicially before the removal of the case. The judgment of the district court in such a case comes to this court attended with the usual presumptions of regularity, and in the absence of a showing to the contrary, it will be presumed that the facts before that court, including those of which it was required to take judicial notice, established that the facts charged in the complaint were a violation of the ordinance of the city described or referred to therein. Foley v. State, 42 Neb. 233, 60 N.W. 574; Steiner v. State, 78 Neb. 147, 110 N.W. 723; Maxwell v. Steen, 93 Neb. 29, 139 N.W. 683; Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R. 954.

Appellant argues that the district court was wrong in permitting Marolyn Darling to testify as a witness for appellee. She was an infant of twelve years, in the seventh grade in school, knew what it is to tell the truth, did not know the meaning of an oath, but knew she was expected to tell the truth 'because the Bible says so.' She was told that by her parents and her Sunday School teacher. Appellant objected to her competency as a witness when she was asked the first question material to the issue in the case for the reason that it was not shown she knew the meaning of an oath. He did not ask to be permitted to examine her as to her knowledge or ability to testify, neither did he ask the court to do so. In this state no age is fixed by statute below...