Opinion
No. 37453.
Filed November 6, 1970.
1. Damages: Evidence. Knowledge that an accident has occurred and that personal injuries have been inflicted may be established by circumstantial evidence. 2. Juvenile Courts: Actions. An action in a juvenile court may be dismissed by the county attorney at any time prior to trial without leave of court.
Appeal from the separate juvenile court of Douglas County: SEWARD L. HART, Judge. Reversed and remanded with directions to dismiss.
Kneifl, Kneifl Byrne and Terrence J. Ferguson, for Moore.
Donald L. Knowles and Colleen R. Buckley, for Gordon E. Doeschot.
Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
Stephen Jeffrey Moore, a minor 13 years of age, was charged in separate juvenile court with being a delinquent or a child in need of special supervision. He was found by the court to be a child in need of special supervision and was placed on probation. The basis of the charge was an alleged violation of section 39-762, R.R. S. 1943. We reverse the judgment of the separate juvenile court.
The evidence indicates that on March 31, 1969, 7-year old Vicki Mulligan was attending Mary Our Queen School in Omaha, Nebraska, and was playing in the parking lot on the school grounds when she was struck by, or ran into, a mini motor-bike operated by Stephen Jeffrey Moore. A passenger on the bike fell off when the accident occurred and as soon as he got back on, Stephen drove off. Vicki was knocked 4 or 5 feet from the point of contact, fell down, lost one shoe, and sustained a compound fracture of one leg.
Error is assigned on the ground that the state failed to show Stephen had knowledge of the accident and injury to Vicki. Stephen admits he knew he struck Vicki and knocked her down. It is apparent he had knowledge of the accident and the circumstantial evidence is sufficient to require a finding that he had knowledge an injury had been inflicted. In cases of this nature, knowledge may be proved by circumstantial evidence. See State v. Snell, 177 Neb. 396, 128 N.W.2d 823.
Section 43-201, R.R.S. 1943, defines a delinquent child as one who has violated a municipal ordinance or state law. It is contended that the petition is defective in failing to include an essential element of the offense of unlawfully leaving the scene of an accident. This contention is rendered immaterial as the separate juvenile court did not find Stephen to be a delinquent child. It did find he was a child in need of special supervision on the basis set out in subsection (5) (c) of the statute. He had deported himself in such a manner as to injure and seriously endanger the health of others.
The petition contained two counts. Count I was dismissed by the court. It is asserted that the motion of the county attorney to dismiss Count II, made prior to trial, must be honored and that the separate juvenile court was without authority to overrule the motion. Such proceedings in a juvenile court have been denominated quasi-criminal in character but are generally considered to be civil actions and were unknown at common law. Statutes regulating the juvenile courts do not encompass the question presented. At common law, a criminal action could be dismissed by the prosecuting attorney, without leave of court, at any time before a jury was impaneled. See 22A C.J.S., Criminal Law, 457c, p. 5. This rule has not been altered by statute in Nebraska. By statute, civil actions may be dismissed without leave of court at any time before final submission of the cause. See, 25-601, R.R.S. 1943; Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650. At common law, a plaintiff had a similar right to dismiss without leave of court at any time prior to trial. See 27 C. J. S., Dismissal Nonsuit, 18a, p. 338. Whether a juvenile court action be regarded as quasi-criminal or civil in nature in the absence of a special statute to the contrary, it appears that the county attorney, when not disqualified, may dismiss the action without leave of court. This being true, it follows that the dismissal of Count II by the county attorney was final and Count I, having been dismissed by the court, the case has been finally concluded.
The judgment of the separate juvenile court is reversed and the cause dismissed.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.