State v. Landis

distinguishes this case from People v. Green16 and People v
Kerrigan,17 on which Sharp relies. It is closer to the language
of search warrants which were held to authorize an offpremises
search of named persons in People v Carter,18 People v. Velez,19
and People v. Gonzalez.20 We conclude that the search warrant
was personal to Sharp and authorized a search of his person on
or off the premises identified in the warrant.
CONCLUSION
For the reasons discussed, the district court did not err in
denying Sharp’s motion to suppress. The evidence which was
the subject of that motion was properly received and estab
lished Sharp’s guilt of the offense charged. We affirm his con
viction and sentence.
A ffirmed.
Wright, J., not participating.
16 People v. Green, 33 N.Y.2d 496, 310 N.E.2d 533, 354 N.Y.S.2d 933
(1974).
17 People v Kerrigan, 49 A.D.2d 857, 374 N.Y.S.2d 22 (1975).
18 People v Carter, 56 A.D.2d 948, 392 N.Y.S.2d 712 (1977).
19 People v. Velez, 204 Ill. App. 3d 318, 562 N.E.2d 247, 149 Ill. Dec. 783
(1990).
20 People v. Gonzalez, 316 Ill. App. 3d 354, 736 N.E.2d 157, 249 Ill. Dec.
315 (2000).
StAte of NebrASkA, Appellee , v.
millArd W. lANdiS, AppellANt.
794 N.W.2d 151
Filed February 18, 2011. 	No. S 09 1313.
1. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error. In
reviewing a motion to suppress a confession based on the claimed involuntariness
of the statement, an appellate court applies a two part standard of review. With
regard to historical facts, an appellate court reviews the trial court’s findings for
clear error. Whether those facts suffice to meet the constitutional standards, how
ever, is a question of law, which an appellate court reviews independently of the
trial court’s determination.
STATE v. LANDIS 	139
Cite as 281 Neb. 139
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

2. Confessions. It is a mixed question of law and fact whether a statement was
voluntarily made and whether a custodial interrogation has occurred.
3. Miranda Rights. The safeguards provided by Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play whenever a person in
custody is subjected to either express questioning or its functional equivalent.
4. Miranda Rights: Arrests: Words and Phrases. A person is in custody for
purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), when there is a formal arrest or a restraint on one’s freedom of movement
to the degree associated with such an arrest.
5. Miranda Rights: Investigative Stops. Persons temporarily detained pursuant
to an investigatory traffic stop are not “in custody” for purposes of Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6. Miranda Rights: Police Officers and Sheriffs: Investigative Stops. When
a person is detained pursuant to a traffic stop, there must be some further
action or treatment by the police to render the driver in custody and entitled to
Miranda warnings.
7. Miranda Rights: Arrests. It is where a suspect is detained only to an extent
analogous to an arrest that Miranda warnings are required.
8. Confessions: Police Officers and Sheriffs: Due Process. Coercive police activ
ity is a necessary predicate to the finding that a confession is not voluntary within
the meaning of the Due Process Clause of the 14th Amendment.
Petition for further review from the Court of Appeals, irWiN,
SieverS, and CArlSoN, Judges, on appeal thereto from the
District Court for Lancaster County, SteveN d. burNS, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
John S. Berry, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, Nathan A. Liss, and James
D. Smith for appellee.
heAviCAN, C.J., C oNNolly, gerrArd, StephAN, mCC ormACk ,
and miller-lermAN, JJ.
miller-lermAN, J.
NATURE OF CASE
Millard W. Landis, appellant, was convicted in the district
court for Lancaster County of possession of a controlled sub
stance (marijuana) with intent to deliver. He appealed to the
Nebraska Court of Appeals. The Court of Appeals determined
that Landis was in custody during questioning by state troop
ers and that because the troopers failed to give Landis Miranda
140 	281 NEBRASkA REPORTS

warnings, the evidence of the statement and physical evidence
obtained as a result of such questioning should have been sup
pressed. The Court of Appeals reversed. We granted the State’s
petition for further review. We reverse the decision of the Court
of Appeals and remand the cause with directions to affirm
the conviction.
STATEMENT OF FACTS
On the afternoon of November 18, 2008, a state trooper
stopped Landis for speeding on Interstate 80. The trooper,
Derek kermoade, asked Landis to follow him to his cruiser
where he would issue a warning. Landis followed kermoade
and sat in the front passenger seat. In response to question
ing, Landis told kermoade that he was traveling from New
Mexico to Pittsburgh, Pennsylvania. kermoade learned from a
license plate check that the plates on Landis’ car were issued
for a different vehicle. Landis explained that he had recently
traded cars and had been told by Pennsylvania motor vehicle
officials that he could use the plates on the new car. kermoade
asked Landis whether he had ever been arrested, and Landis
admitted he had been arrested for smoking marijuana in
the 1970’s.
Christopher Bigsby, another state trooper, had been moni
toring traffic and conducting speed enforcement in a sepa
rate vehicle in the same area as kermoade. Bigsby saw that
kermoade had stopped Landis, and Bigsby activated his scan
ner to listen in on the traffic stop. Bigsby learned that a
criminal history check kermoade had requested showed that
Landis had a criminal history related to drugs. Bigsby made
an additional inquiry and learned that Landis had been arrested
for drug distribution in 2002. knowing from listening in on the
traffic stop that Landis was not being fully truthful about his
criminal history, Bigsby approached kermoade and told him
that one of the tires on his cruiser was low on air as a ruse
to get kermoade out of the cruiser so that Bigsby could tell
kermoade about Landis’ additional criminal history. After con
veying the information to kermoade outside Landis’ hearing,
Bigsby returned to his vehicle and continued to monitor the
stop through his scanner.
STATE v. LANDIS 	141
Cite as 281 Neb. 139

kermoade returned to his cruiser and asked Landis whether
he had been arrested in 2002. Landis denied that he had been
arrested in 2002. kermoade gave Landis a warning for speed
ing and returned his registration and license to him approxi
mately 20 minutes after the stop had been initiated. As Landis
was starting to leave the cruiser, kermoade asked whether he
could ask a few more questions. Landis agreed to continue the
conversation, sat back inside the cruiser, and shut the door.
kermoade asked Landis whether there was anything in his car
that should not be there, such as large amounts of marijuana,
methamphetamine, or heroin, or large amounts of cash or
weapons. Landis denied that any of those things were in the
car. kermoade then asked whether he could search Landis’ car.
Landis said yes but immediately asked why kermoade wanted
to search the car. kermoade said he had a feeling there was
something in the car that should not be there.
Bigsby, who had been monitoring the conversation on his
scanner, approached kermoade’s cruiser and stood outside
the passenger door by Landis. Bigsby joined the conversation
and told Landis that possession of “personal use” marijuana
was just a citation and that after being cited, Landis could be
on his way. Bigsby and kermoade continued to ask Landis
whether they could search his vehicle, and Bigsby repeated
that possession of “personal use” marijuana would be only a
citation. Shortly after Bigsby joined the conversation, Landis
admitted to having marijuana on his person. Bigsby told
Landis to take it out, and Landis took a cigarette holder con
taining five marijuana joints out of his pocket and handed it
to kermoade.
The troopers determined that Landis’ statement that he pos
sessed marijuana and his possession of the five marijuana
joints, combined with other factors, gave them probable cause
to search his vehicle. The troopers put Landis into the back
seat of kermoade’s cruiser and went to search Landis’ car.
Upon opening the hatchback of the car, the troopers quickly
found three bags containing bales of marijuana under the can
vas cargo cover. The bags were later determined to contain
approximately 125 pounds of marijuana. The troopers placed
Landis under arrest for possession of marijuana with intent to
142 	281 NEBRASkA REPORTS

deliver. Landis was not given a Miranda warning at any time
before the troopers searched his car.
Prior to trial, Landis moved to suppress evidence obtained as
a result of the traffic stop, the troopers’ questioning of Landis,
and the search of his car. After a hearing that included testi
mony by kermoade and Bigsby and the admission of video
recordings of the stop from both troopers’ cameras, the district
court for Lancaster County denied the motion to suppress.
The court first concluded that kermoade had probable cause
to stop Landis for speeding. The court next considered whether
Landis was illegally detained when kermoade continued ques
tioning him after giving him the warning for speeding. The
court determined that Landis was not “in custody” during the
questioning by kermoade alone. The court noted that after
Bigsby joined the questioning, “[t]here was a demonstrable
difference in the tenor and intensity of the questioning” and
“a palpable change in the circumstances.” The court found,
however, that the troopers “did not apply ‘strong arm’ tactics”
but that “deceptive stratagems were used during question
ing.” Although the court noted that such factors were “very
persuasive that [Landis] was in custody,” the court ultimately
concluded that Landis “was not in custody at the time he pro
duced the marijuana joints” and noted in particular “the brief
time Bigsby was involved in the questioning.” The court noted
that Landis admitted to possessing marijuana “[w]ithin one and
three quarter minutes of Bigsby joining the questioning.”
The court next considered whether the warrantless search of
Landis’ car was proper. The court concluded that the troopers
had probable cause to search the car and cited factors including
Landis’ possession of five marijuana joints on his person and
Landis’ having lied about his criminal history, which included
drug related arrests.
The court also considered evidence from the suppression
hearing for purposes of Jackson v. Denno, 378 U.S. 368, 84 S.
Ct. 1774, 12 L. Ed. 2d 908 (1964). The court found that there
was no “coercion or force of any nature used by the troopers
during their contact during the stop” and concluded that Landis
“freely, voluntarily, and knowingly made his statements” and
that the statements should not be suppressed under Denno.
STATE v. LANDIS 	143
Cite as 281 Neb. 139

In a stipulated bench trial, the court received as evidence
videos from kermoade’s and Bigsby’s cruisers, kermoade’s
written report, a forensic report on the testing of the marijuana
found in Landis’ car, and the transcript of the suppression
hearing. Landis renewed, and the court overruled, his motion
to suppress and objections made at the suppression hearing.
The court found Landis guilty of possession of a controlled
substance (marijuana) with intent to deliver. On December 17,
2009, the court overruled Landis’ subsequent motion for new
trial in which he asserted that the court erred when it over
ruled his motion to suppress and that there was not sufficient
evidence to support the verdict. The court sentenced Landis to
imprisonment for 2 to 4 years.
Landis appealed his conviction to the Court of Appeals and
asserted, inter alia, that the district court erred when it overruled
his motion to suppress. Landis did not complain of the initial
stop or kermoade’s initial questioning. Instead, Landis asserted
that an illegal stop and search began after Bigsby joined in the
questioning and the troopers asked to search Landis’ vehicle.
Landis claimed that the district court erred when it found that
Miranda warnings were not required based on its determination
that he was not in custody.
In a memorandum opinion filed June 29, 2010, the Court of
Appeals reviewed the circumstances of the questioning by the
two troopers and concluded that Landis was in custody. The
Court of Appeals stated that although Landis had been told
that he was free to go, he was “‘sandwiched’” between the
two troopers and the only way he could have left was to ask
Bigsby to step out of the way. The Court of Appeals further
noted that although Landis voluntarily agreed to further ques
tioning after kermoade gave him the warning for speeding, the
questioning in which both troopers participated was “assertive
and police dominated, reaching such a level that a reasonable
person would have felt pressured to admit guilt.” Such ques
tioning included assertions by both troopers that they believed
Landis had something illegal in his car and repeated state
ments that if he admitted to possession of marijuana, he would
just be given a citation and sent on his way. The Court of
144 	281 NEBRASkA REPORTS

Appeals characterized the questioning as “accusatory,” though
not threatening.
Considering these factors, the Court of Appeals concluded
that “a reasonable person would not have felt free to terminate
the interrogation and leave” and that therefore “Landis was ‘in
custody’ during the questioning by Troopers kermoade and
Bigsby and Miranda warnings were required.” Because Miranda
warnings were not given, the Court of Appeals concluded that
the district court should have granted Landis’ motion to sup
press his statement to the troopers that he had marijuana on his
person. The Court of Appeals further concluded that without
such statement, the troopers did not have probable cause to
search Landis’ vehicle, and that therefore the physical evidence
obtained during and after the questioning, i.e., the five mari
juana joints Landis took out of his pocket and the 125 pounds
of marijuana found in the search of the car, should have been
suppressed. The Court of Appeals therefore reversed Landis’
conviction. After concluding that the evidence, including the
erroneously admitted evidence, supported a guilty verdict, and
relying on Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285,
102 L. Ed. 2d 265 (1988), the Court of Appeals reversed, and
remanded for a new trial.
The State filed a petition for further review, which we
granted.
ASSIGNMENTS OF ERROR
The State claims that the Court of Appeals erred when it (1)
concluded that Landis was “in custody” during the question
ing by the two troopers, (2) applied the exclusionary rule to
suppress the physical evidence seized as a result of Landis’
statements, and (3) reversed Landis’ conviction. The State spe
cifically asked this court to consider the application of United
States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed.
2d 667 (2004) (generally holding that physical evidence need
not necessarily be excluded following a Miranda violation), to
this case in the event this court determined that Landis was in
custody and his statements should be suppressed. Given our
disposition of this case, we do not consider Patane.
STATE v. LANDIS 	145
Cite as 281 Neb. 139

STANDARDS OF REVIEW
[1] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, an appel
late court applies a two part standard of review. With regard
to historical facts, an appellate court reviews the trial court’s
findings for clear error. Whether those facts suffice to meet the
constitutional standards, however, is a question of law, which
an appellate court reviews independently of the trial court’s
determination. State v. Seberger, 279 Neb. 576, 779 N.W.2d
362 (2010).
[2] It is a mixed question of law and fact whether a state
ment was voluntarily made and whether a custodial interroga
tion has occurred. These questions involve the application of
the facts surrounding the statement to the constitutional rubric
mandated by the U.S. Supreme Court, and are reviewed under
the two point standard of review set forth above. See State v.
Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
ANALYSIS
The Court of Appeals Erred When It Determined That
Landis Was in Custody When He Was Questioned
by Two Troopers.
The State claims that the Court of Appeals erred when it
concluded that Landis was “in custody” during the question
ing by the two troopers. We agree, and we therefore conclude
that the Court of Appeals erred when it concluded that because
Miranda warnings were not given, the district court should
have granted Landis’ motion to suppress his statement to the
troopers that he had marijuana on his person, and further erred
when it concluded that the physical evidence obtained during
and after the questioning should have been suppressed.
In his motion to suppress, Landis asserted, inter alia, that
he was illegally detained during the questioning by kermoade
and Bigsby. The district court acknowledged that there was
a “demonstrable difference in the tenor and intensity of the
questioning when Bigsby joined the discussion.” However, the
court also noted that Landis had earlier been told that he was
free to terminate the interview and to leave. The court further
found that the duration of the interrogation by both troopers
146 	281 NEBRASkA REPORTS

was “quite short” and that Landis admitted he possessed mari
juana “[w]ithin one and three quarter minutes of Bigsby join
ing the questioning.”
The Court of Appeals disagreed with the district court’s rul
ing and concluded that Landis was in custody during the ques
tioning by both troopers. The Court of Appeals acknowledged
that the time of questioning by both troopers was short, but
determined that “the questioning was aggressive and dominated
by the presence of two officers,” one of whom stood outside
the door by which Landis was sitting. The Court of Appeals
found that a reasonable person would not have felt free to ter
minate the interrogation and leave, and concluded that Landis
was in custody.
[3,4] The safeguards provided by Miranda come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent. State v. Bormann,
279 Neb. 320, 777 N.W.2d 829 (2010). Miranda warnings are
required only when there has been such a restriction on one’s
freedom as to render one “in custody.” Id. A person is in cus
tody for purposes of Miranda when there is a formal arrest or
a restraint on one’s freedom of movement to the degree associ
ated with such an arrest. Id.
[5] With regard to the “in custody” determination, the State
notes that the U.S. Supreme Court and this court have held
that persons temporarily detained pursuant to an investiga
tory traffic stop are not “in custody” for purposes of Miranda.
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed.
2d 317 (1984); State v. Casillas, 279 Neb. 820, 782 N.W.2d
882 (2010). The State argues that such precedent is more appli
cable to the present case than State v. Rogers, 277 Neb. 37, 760
N.W.2d 35 (2009), upon which the Court of Appeals relied in
its memorandum opinion. The State notes that Rogers involved
a “classic police station interrogation” wherein the defend
ant experienced “2 hours of isolation in a police dominated
atmosphere, physically blocked from the exit, and subjected to
aggressive accusatorial interrogation in which [the defendant]
was confronted with substantial evidence to prove her guilty of
a crime.” 277 Neb. at 63, 760 N.W.2d at 57. The State argues
that the circumstances of Rogers are significantly different
STATE v. LANDIS 	147
Cite as 281 Neb. 139

from the present case involving a vehicle stop in which Landis
was subjected to a few minutes of questioning to which he vol
untarily consented. Thus, the State suggests that the Court of
Appeals’ application of the Rogers analysis was misguided and
that this case is controlled by the cases holding that a defend
ant is not “in custody” during an investigatory traffic stop.
The State also takes issue with the Court of Appeals’ charac
terization of the second trooper “blocking” Landis’ exit when
the trooper was standing at the door in order to participate in
the questioning.
[6,7] As the State notes, we have held that an individual
temporarily detained pursuant to an investigatory traffic stop
is not in custody for purposes of Miranda. State v. Casillas,
supra; State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
Further, Miranda warnings are not required for general on the
scene questioning as to facts surrounding a crime. Dallman,
supra. When a person is detained pursuant to a traffic stop,
there must be some further action or treatment by the police to
render the driver in custody and entitled to Miranda warnings.
Id. We stated in Dallmann that although courts have indicated
that Miranda warnings may be required under some circum
stances before a suspect is actually arrested, where police
officers use no coercion or threat of force and any continued
detention is at the consent of the suspect, Miranda warnings
are not required. We concluded that it is where a suspect is
detained only to an extent analogous to an arrest that Miranda
warnings are required. Id.
In this respect, we have noted that neither a brief, voluntary
pat down search nor detaining an individual during the consen
sual search of his or her vehicle generally constitutes custody
for purposes of Miranda. See Dallmann, supra. We have fur
ther held that temporarily detaining a driver to submit to rou
tine field sobriety tests does not ordinarily rise to the level of
custody so as to implicate Miranda. State v. Casillas, 279 Neb.
820, 782 N.W.2d 882 (2010).
With these standards in mind, and given the district court’s
factual findings which are not clearly erroneous, we conclude
that in the present case, Landis was not “in custody” when
he was questioned by the troopers. Landis’ interaction with
148 	281 NEBRASkA REPORTS

kermoade could be characterized as being temporarily detained
pursuant to an investigatory traffic stop. Before Landis could
be considered to be in custody, some further action or treat
ment by the troopers that would raise Landis’ detention to an
extent analogous to an arrest was required.
We note two factors that distinguish the questioning in this
case from a routine traffic stop—Landis was seated in the
trooper’s cruiser, and Landis was questioned by two troopers
while he was physically located between the two. Landis’ pres
ence in the trooper’s cruiser did not raise the interaction to the
extent analogous to an arrest, because there is no indication
that kermoade used force or threats to get Landis to enter the
cruiser or to remain there. After the initial purpose of the stop
was completed, Landis voluntarily stayed in the cruiser for fur
ther questioning at kermoade’s request.
The presence of the second officer also did not raise the inter
action to the level of an arrest. In concluding that the defendant
in Dallmann was not in custody, we noted that although there
were multiple police officers present, the officers used no
threats of force or coercion to obtain the defendant’s consent
to a search, and that nothing in the record indicated that the
defendant believed he was under arrest or that he was not free
to leave. The presence of the second officer does not require
the conclusion that Landis was under arrest or that he was not
free to leave.
Landis voluntarily stayed with kermoade for additional ques
tioning. When Bigsby joined the conversation, the questioning
became more assertive but did not rise to the level of threats
of force or coercion. Although Landis was physically located
between the two officers and it would have been difficult for
him to leave without asking Bigsby to move, there is no indica
tion that he attempted to leave or that the officers resisted any
effort to leave. Furthermore, Landis was located between the
two officers for less than 2 minutes when he made the state
ments he sought to suppress. Given the short duration of the
questioning and other factors, we do not find this to be a situa
tion where a reasonable person in Landis’ circumstances would
have concluded that he was not free to leave or was forced or
threatened into confessing that he possessed marijuana.
STATE v. LANDIS 	149
Cite as 281 Neb. 139

We conclude the Court of Appeals erred when it concluded
that Landis was “in custody” and that his statement that he
possessed marijuana should have been suppressed due to a lack
of Miranda warnings. The Court of Appeals further erred when
it concluded that the physical evidence should have been sup
pressed because it was obtained as a result of such statement.
The Court of Appeals Erred When It Reversed
Landis’ Conviction.
The State also claims on further review that the Court of
Appeals erred when it reversed Landis’ conviction. Before
concluding that the Court of Appeals erred when it reversed
Landis’ conviction, we consider Landis’ other assignments
of error which the Court of Appeals did not reach because it
disposed of the appeal based on its determination that Landis
was “in custody” and that therefore his statement and the
evidence obtained as a result of his statement should have
been suppressed.
In addition to the assignment of error upon which the Court
of Appeals resolved the appeal, Landis asserted the district
court erred when it determined that his statement was volun
tary and that the troopers had probable cause to search Landis’
vehicle. Landis also claimed that there was not sufficient evi
dence to support his conviction.
[8] The district court found that Landis’ statement that
he possessed marijuana was voluntary and need not be sup
pressed under Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774,
12 L. Ed. 2d 908 (1964). The court found that the record did
not “reveal any coercion or force of any nature used by the
troopers.” We have noted that “‘coercive police activity is
a necessary predicate to the finding that a confession is not
“voluntary” within the meaning of the Due Process Clause
of the Fourteenth Amendment.’” State v. Bormann, 279 Neb.
320, 332 33, 777 N.W.2d 829, 839 (2010) (quoting Colorado
v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473
(1986)). Based on factors similar to those in our analysis of
whether Landis was “in custody,” we conclude that the district
court did not err when it concluded that Landis’ statement that
he possessed marijuana was voluntary.
150 	281 NEBRASkA REPORTS

Landis’ assignments of error regarding probable cause to
search his vehicle and sufficiency of the evidence both hinged
on his being successful in his assertion that his statement that
he possessed marijuana should be suppressed. Landis argued
that without the statement, the troopers did not have prob
able cause to search his vehicle, and that without the evidence
obtained from the search of his vehicle, there was not sufficient
evidence to sustain his conviction. Because we have concluded
that the statement need not be suppressed, it logically follows,
and we further conclude, that the statement that he possessed
marijuana and other factors combined to give the troopers
probable cause to search Landis’ vehicle and that the evidence
obtained as a result of the troopers’ questioning and the search
of the vehicle was sufficient to support Landis’ conviction.
Landis’ additional assignments of error are without merit.
We therefore conclude that the Court of Appeals erred when it
reversed Landis’ conviction.
CONCLUSION
We conclude that Landis was not in custody during the ques
tioning by the troopers and that therefore the Court of Appeals
erred when it determined that Landis’ statement during the
questioning should have been suppressed for lack of Miranda
warnings. We further conclude that Landis’ other assignments
of error were without merit and that the Court of Appeals
erred when it reversed Landis’ conviction. We reverse the deci
sion of the Court of Appeals, and we remand the cause to the
Court of Appeals with directions to affirm Landis’ conviction
and sentence.
reverSed ANd remANded With direCtioNS.
Wright, J., not participating.
STATE v. LANDIS 	151
Cite as 281 Neb. 139