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State v. Colgrove , 197 Neb. 375 ( 1977 )


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  • 248 N.W.2d 780 (1977)
    197 Neb. 375

    STATE of Nebraska, Appellee,
    v.
    Richard D. COLGROVE, Appellant.

    No. 40789.

    Supreme Court of Nebraska.

    January 12, 1977.

    James T. Hansen, Hugh L. Kenny, Gering, for appellant.

    Paul L. Douglas, Atty. Gen., John R. Thompson, Asst. Atty. Gen., Lincoln, for appellee.

    Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

    CLINTON, Justice.

    The defendant was found guilty by a jury of the charge of operating a motor vehicle to flee in an effort to avoid arrest, contrary to the provisions of section 60-430.07, R.R. S.1943, and was sentenced to a term of 6 months in the county jail. Upon appeal to this court the sole assignment of error is the refusal of the trial judge to give a requested instruction which would have permitted the jury to find the defendant guilty of "lesser included offenses" of speeding, failure to yield the right-of-way to an emergency vehicle, and failure to obey a lawful order of the law enforcement officer.

    *781 The assignment is patently unmeritorious. Section 60-430.07, R.R.S.1943, defines the crime of which the defendant was convicted as follows: "It shall be unlawful for any person operating any motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this state." The elements of the crime are (1) to operate a motor vehicle, (2) to flee in such vehicle, and (3) in an effort to avoid arrest for violating any law of the state.

    A lesser included offense is one which is necessarily established by proof of the greater offense. Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199. To be a lesser included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser. Certain v. State, 261 Ind. 101, 300 N.E.2d 345. In sum the lesser included offense is one all the elements of which are necessarily included in the greater. See, State v. Jones, 186 Neb. 303, 183 N.W.2d 235; State v. McClarity, 180 Neb. 246, 142 N.W.2d 152.

    None of the offenses mentioned in the requested instruction are necessary elements of the crime charged any more than would assault and battery (or homicide) be included if that were the charge for which the defendant's arrest was sought.

    AFFIRMED.