State v. Johnson

195 N.W.2d 517 (1972)

188 Neb. 151

STATE of Nebraska, Appellee, v. Donald Duane JOHNSON, Appellant.

No. 37879.

Supreme Court of Nebraska.

March 17, 1972.

*518 Donald Duane Johnson, pro se.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

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

WHITE, Chief Justice.

The sole question presented in this case is the validity of instruction No. 11 given by the district court. The instruction is as follows: "You are to draw no conclusions or inferences from the fact that the defendant has not testified in this case, and you are entitled to draw no conclusions or inferences as to his reason in that regard." In Murray v. State, 119 Neb. 16, 226 N.W. 793, the defendant alleged error in the following instruction: "`You are instructed that the defendant has not testified in his own behalf in this case, as he had a lawful right to do. Nothing must be taken against him because he has not so testified.'" The court approved this instruction. In the recent case of State v. Adams, 181 Neb. 75, 147 N.W.2d 144, this court approved a similar instruction on the same subject matter.

It is obvious, without further analysis, that there is no merit to the defendant's contention. The instruction was clearly framed in the light of our holdings in Murray and Adams. The instruction did not imply that the defendant had a duty to testify and the instruction could not have prejudiced the defendant in any way.

The assignment of error is without merit, and the sentence and judgment of the district court are correct and are affirmed.

Affirmed.