State v. Ford

190 N.W.2d 787, 187 Neb. 353, 1971 Neb. LEXIS 619

• Court: Nebraska Supreme Court
• Decided: October 15, 1971
• Docket: 38025
• Status: Published

Opinion

Newton, J.

This is a post-conviction proceeding. Defendant charges that his conviction on a charge of manslaughter resulted from perjured testimony knowingly used with the connivance of the court, the county attorney, and thé public- defender: The district court denied'an evidentiary hearing- and dismissed defendant’s motion. We affirm the judgment 'of the district- court.

- Defendant’s -entire motion is based-- on the fact that a Witness had made, prior to trial,- certain statements conflicting with her -testimony.- This was known to defendant and his attorney at the time of trial, was-brought out - on cross-exaihination of another witness, and the circumstances fully -presented to the jury.

A “conviction obtained through the use of false testimony, known by the State to be such, is in violation of the Fourteenth Amendment to the Constitution of the United States. See, Napue v. Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217; Miller v. Pate, 386 U. S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690.

“The resolution of conflicts and inconsistencies in the testimony of a-witness is a question of fact for the jury arid'it is their function to determine which, if any, of the inconsistent statements 'of a witness is true.” 23A C. J. S., Criminal Law, § 1138d, p.- 345. See, also, Hynes v. State, 115 Neb. 391, 213 N. W. 347.

In the present case, the conflicting statements of the witness were known to the jury. It was simply a question of credibility which the jury, in full possession of the fa'cts,' resolved.

The judgment of the district court is affirmed.

Affirmed.