Opinion
Nos. 40171, 40172.
Filed March 4, 1976.
1. Criminal Law: Indictments and Informations: Trial: Verdicts. In an information containing three counts, a verdict of guilty on two of the counts and an acquittal on the other is not inconsistent, although the evidence would have justified the conviction on all the counts. 2. Evidence: Witnesses: Trial. The polygraph, commonly known as a lie detector, used for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory.
Appeals from the District Court for Buffalo County: DONALD H. WEAVER, Judge. Affirmed.
Andrew J. McMullen and Richard Hove, for appellant.
Paul L. Douglas, Attorney General, and Patrick T. O'Brien, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
The defendant was convicted on two counts of delivery of a controlled substance in violation of section 28-4,125, R. S. Supp., 1974. He was given a sentence of 3 to 9 years on each count, with the sentences to run consecutively. The defendant appeals. We affirm the judgment and sentences of the District Court.
The defendant was charged on three counts of delivering a controlled substance; first, for the delivery of amphetamines on December 12, 1974; second, for the delivery of marijuana on December 16, 1974; and third, for another delivery of marijuana on December 19, 1974. The prosecution's only witness with respect to the delivery of the controlled substances was an informer, Mr. Landrie. Landrie testified that the defendant sold him the controlled substances on the three dates listed above. Numerous defense witnesses contradicted Landrie's testimony relating to the defendant's presence on December 16, 1974, when Landrie testified that he had purchased marijuana from the defendant. Based on Landrie's testimony, the District Court, sitting without a jury, found the defendant guilty on the first and third counts but acquitted the defendant on the second court.
The defendant appeals the convictions on three grounds. First, the defendant contends that, once a witness has willfully sworn falsely at a trial, his testimony cannot be sufficient, if uncorroborated, to support a finding of guilty.
For authority, the defendant cites the case of Jahnke v. State, on rehearing, 68 Neb. 181, 104 N.W. 154. The defendant's reliance on Jahnke is misplaced. Jahnke involved an accomplice, rather than an ordinary disinterested witness. An accomplice' testimony by its very nature raises some doubts as to its veracity. In Jahnke the accomplice told two directly contradictory stories under oath. Under those circumstances, it was reasonable for the court to require corroboration of his testimony. Those circumstances which require corroboration in Jahnke do not exist in the present case. Landrie was not an accomplice of the defendant. There is no proof that Landrie lied under oath. There was testimony which conflicted with Landrie's testimony relating to the defendant's whereabouts on December 16, 1974. But this is not proof that Landrie lied under oath. The fact that the District Court acquitted the defendant on the second count does not mean that the District Court found that Landrie had lied. Rather, the acquittal could mean that the District Court found the prosecution had not carried its burden of proving the defendant's guilt beyond a reasonable doubt.
The defendant next contends that where identical evidence is offered on several counts, and the judge acquits on one count and convicts on the other counts, the verdicts are reversibly inconsistent and the convictions cannot stand. In essence, what the defendant argues is that the District Court acquitted the defendant under one count, and since the same evidence was used to convict him under the other two counts, the acquittal and the two convictions are inconsistent. However, the defendant's contention fails because: First, the evidence relied on in the different counts is not identical, the witness is the same, but not his testimony; second, this court has affirmed convictions in which information in multiple counts resulted in conviction on one count and acquittal on the other count. In Weinecke v. State, 34 Neb. 14, 51 N.W. 307, the court stated: "The evidence would have justified a conviction under both counts of the information. Both offenses were committed by the same person and at the same time. It is, indeed, unexplainable how the jury arrived at the verdict returned. As a separate offense is charged in each count, the verdict is not void. The defendant cannot complain because he was acquitted of the first offense. The error was in his favor." Then, in Wentz v. State, 108 Neb. 597, 188 N.W. 467 (1922), in which it was claimed that a not guilty verdict on count two required an acquittal on count three, on which a guilty verdict was rendered, the court stated as follows: "The second and third counts charge different offenses, and, while it may be that the same proof would have justified a conviction on both counts, the fact that a verdict of not guilty was rendered on the second count does not affect (require) an acquittal on the third count."
The defendant's final contention is that the District Court erroneously refused to order the prosecution to stipulate that the results of a polygraph examination of the defendant would be admissible into evidence at the trial. By motion, the defendant offered to take a polygraph test and have the test be admitted into evidence, regardless of the results of the test. The District Court correctly denied the motion.
We have consistently held that polygraph examinations are not admissible into evidence in this state. In Parker v. State, 164 Neb. 614, 83 N.W.2d 347, this court stated that: "The polygraph, commonly known as a lie detector, used for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory." See, also, State v. Temple, 192 Neb. 442, 222 N.W.2d 356.
The decision of the District Court is correct and is affirmed.
AFFIRMED.
BRODKEY, J., concurs in the result.