Opinion
No. 33597.
Filed April 15, 1955.
1. Municipal Corporations: Penalties. A prosecution for an act in violation of a city ordinance which act is not a violation of statute is a civil action for the recovery of a penalty and in such case the burden is on the prosecution to prove the charge by a preponderance of the evidence. 2. ___: ___. In an action to recover a penalty for violation of a city ordinance where a jury is waived the matter of weighing the evidence to determine whether or not the prosecution has sustained the burden of proving its case by a preponderance of the evidence is one for the trial judge and his finding will not be disturbed unless it is clearly wrong.
APPEAL from the district court for Douglas County: CARROLL O. STAUFFER, JUDGE. Affirmed.
John N. Baldwin, for appellant.
Clarence S. Beck, Attorney General, Homer G. Hamilton, Charles A. Fryzek, and Henry C. Winters, for appellee.
Heard before SIMMONS, C.J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
In a complaint filed in the municipal court of the city of Omaha, Nebraska, in the name of the State of Nebraska, Gilbert Gayle Renensland was charged with the commission of indecent, lewd, and filthy acts contrary to the ordinance of the city of Omaha, Nebraska. He was tried in that court, found guilty, and sentenced to a term of 30 days in jail. From this judgment he appealed to the district court. In the district court he waived a trial by jury and was tried to the court, found guilty, and sentenced to 60 days in jail. From this judgment he has appealed to this court.
As grounds for reversal the appellant has set forth, in number, five assignments of error. From an examination of them and the presentation made in the brief it becomes clear that, in truth, there is but one, namely that the evidence is insufficient to sustain the judgment. There is no attack upon the form or substance of the complaint and no contention that the evidence adduced in support of the complaint on behalf of the complainant did not support the charge made in the complaint.
As pointed out the charge was made under a city ordinance. The offense charged was not one defined as a crime by statute. This then is a civil action and the burden was upon the prosecution to prove the charge only by a preponderance of the evidence. State v. Neimer, 147 Neb. 284, 23 N.W.2d 81; Wells v. State, 152 Neb. 668, 42 N.W.2d 363.
In an action to recover a penalty for violation of a city ordinance where a jury is waived the matter of weighing of evidence to determine whether or not the prosecution has sustained the burden of proving its case by a preponderance of the evidence is one for the trial judge and his finding will not be disturbed unless it is clearly wrong. State v. Neimer, supra.
The record contains evidence that the appellant was guilty of indecent, offensive, and abnormal sexual overtures and advances toward two witnesses who gave testimony in this case. From an examination of this we are unable to say that the finding of the trial judge that the appellant was guilty of the charge made was clearly wrong.
The judgment of the district court is therefore affirmed.
AFFIRMED.