State v. Cinema 16, Inc. ( 1977 )

250 N.W.2d 633 (1977) 197 Neb. 675

STATE of Nebraska, Appellee,
v.
CINEMA 16, INC., Appellant.

No. 40848.

Supreme Court of Nebraska.

February 16, 1977.

Walter J. Matejka, Omaha, for appellant.

Paul Douglas, Atty. Gen., Lincoln, Herbert M. Fitle, City Atty., Gary P. Bucchino, City Prosecutor, Omaha, for appellee.

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

McCOWN, Justice.

Cinema 16, Inc., was charged in the municipal court of Omaha on three counts of distribution of obscene materials in violation of section 28-926.17(1), R.R.S.1943. Defendant was found guilty by a jury on all three counts and fined $1,000 on each count. An appeal was taken to the District Court in accordance with section 29-611 et seq., R.R.S.1943. The District Court affirmed the convictions but noted in the judgment that the instructions used by the municipal court could not be found and had not been presented to the District Court for review because of their unavailability. The defendant has appealed to this court contending that the absence of the municipal court instructions at the time the District Court entered its judgment on appeal necessitates the reversal of the convictions. We disagree.

The record shows that in the municipal court the defendant submitted two requested instructions which were in the alternative, and that the court and parties agreed that one of those instructions would be given. The record fails to show that any objections were made to the instructions given in the municipal court, or that there was any objection to the failure to give any requested instruction. Neither was any issue involving the giving of instructions ever raised in the District Court. The instructions actually given by the municipal court were later located. They were filed in the District Court on May 26, 1976, some 6 weeks after the judgment on appeal had been entered. Those instructions are now a part of the record in this court. No objections have yet been made to any of those instructions. Neither has the defendant attempted to establish any prejudice which may have resulted.

Unless an error can be considered prejudicial to the rights of a defendant, it may not be considered as ground for reversal. State v. O'Kelly, 193 Neb. 390, 227 N.W.2d 415. A review of the instructions given fails to establish that they were erroneous in any respect. An assignment of error with regard to failure to give an unrequested instruction may not be sustained unless it is shown that the instructions given were such as to cause a miscarriage of justice. State v. Fischer, 194 Neb. 578, 234 N.W.2d 205.

Even if there were any validity to defendant's claim of error, there was no motion for a new trial in the District Court. Alleged errors not brought to the attention of the trial judge in any way in a motion for a new trial are not entitled to be considered or reviewed by this court. State v. Svoboda, 194 Neb. 663, 234 N.W.2d 901.

The judgment is affirmed.

AFFIRMED.