Adams v. State

• Decision Date: 18 October 1940
• Docket Number: 30985.
• Citation: 294 N.W. 396,138 Neb. 613
• Parties: ADAMS v. STATE.
• Court: Nebraska Supreme Court

294 N.W. 396

138 Neb. 613

ADAMS v. STATE.

No. 30985.

Supreme Court of Nebraska.

October 18, 1940

Syllabus by the Court.

1. " A statute may adopt a part or all of another statute by a specific and descriptive reference thereto, and the effect is the same as if the statute or part thereof adopted had been written into the adopting statute." In re Estate of Mathews, 125 Neb. 737, 252 N.W. 210.

2. " The offense of larceny by bailee is defined in section 28-547, Comp.St.1929. The sentence is fixed by the general statute on larceny, section 28-511, Comp.St.1929." Frades v. State, 131 Neb. 811, 270 N.W. 314.

3. " The gist of the offense in such a prosecution (for larceny as bailee) is the conversion of the property without the knowledge and consent of the owner thereof with the intent to steal the same." Frades v. State, 131 Neb. 811, 270 N.W. 314.

4. Evidence in the record examined, and held ample to sustain conviction.

5. " The general rule is that evidence of the participation by an accused person in the commission of a crime, other than that for which he is placed on trial, cannot ordinarily be admitted in evidence against him. But the rule has its exceptions which are as well established as the rule itself and may be applied in a given case, not to establish the other crime but as confirmatory of the evidence tending to show the commission by defendant of the crime for which he is being tried." Smith v. State, 114 Neb. 445, 208 N.W. 126.

6. Whether the proof of unlawful conversion of the moneys by the defendant, for which he was not informed against, tended to prove unlawful conversion of the moneys, which he was charged with having converted, is a question of fact for the trial jury.

7. The language employed by the county attorney in his opening statement to the trial jury, viz.: " And the evidence will further show that in county court he (the defendant) pleaded guilty of the charge and later changed his plea in this court," held, under the facts in this case, not objectionable.

Error to District Court, Adams County; Blackledge, Judge.

C. J Adams was convicted of larceny as a bailee, and he brings error.

Affirmed.

J. E. Willits, of Hastings, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ.

EBERLY, Justice.

Plaintiff in error, C. J. Adams, hereinafter referred to as defendant, prosecutes error from his conviction and sentence under the provisions of section 28-547, Comp. St.1929. This section was originally enacted as independent legislation, was approved February 25, 1875, and is as follows: " If any bailee of any money, bank bill or note, goods or chattels shall convert the same to his or her own use, with an intent to steal the same, he shall be deemed guilty of larceny in the same manner as if the original taking had been felonious; and on conviction thereof shall be punished accordingly."

Defendant challenges the sufficiency of this act to sustain the conviction for the reasons, that it is in fact, though not in form, an " attempted" amendment of the larceny statute therein referred to (citing Sovereign v. State, 7 Neb. 409, and Smails v. White, 4 Neb. 353); that there has been no compliance with the Constitution relative to enactment of amendatory legislation, Const. art. 3, § 14; that the same is without force and effect; and that the penalty affixed to another section of the statute in defining an offense cannot be affixed to such section 28-547 except by amendment of the other section, 28-511. This contention cannot be accepted. The effect of the language employed, as above quoted, is not to amend the larceny statute (section 28-511), or to incorporate therein section 28-547, but rather to incorporate in section 28-547, by reference, the penalty provisions of section 28-511 only.

This conclusion is based upon the well-established principle that " A statute may adopt a part or all of another statute by a specific and descriptive reference thereto, and the effect is the same as if the statute or part thereof adopted had been written into the adopting statute. Where, however, the adopted statute is referred to merely by words describing its general character, only those parts of it which are of a general nature, or particularly relate to the subject of the adopting statute, will be considered as incorporated into the later." 59 C. J. 1059.

The part of section 28-511 which particularly relates to the subject of the adopting statute is its penalty provisions, and these are, by reference, incorporated in section 28-547 as effectually and completely as if they " had been written into the adopting statute."

Our own decisions are in harmony with the conclusion thus announced. In the case of In re Estate of Mathews, 125 Neb. 737, 252 N.W. 210, 213, we held: " A statute may adopt a part or all of another statute by a specific and descriptive reference thereto, and the effect is the same as if the statute or part thereof adopted had been written into the adopting statute." See, also, Sheridan County v. Hand, 114 Neb. 813, 210 N.W. 273; Richardson v. Kildow 116 Neb. 648, 218 N.W. 429; State v. Ure, 91 Neb. 31, 135 N.W. 224.

It would seem that the contentions under consideration are wholly foreclosed by the doctrine announced in Frades v. State, 131 Neb. 811, 270 N.W. 314, wherein we held:

" The offense of larceny by bailee is defined in section 28-547, Comp.St.1929. The sentence is fixed by the general statute on larceny, section 28-511, Comp.St.1929.

‘ The gist of the offense in such a prosecution (for larceny as bailee) is the conversion of the property, without the knowledge and consent of the owner thereof, with the intent to steal the same.' Ford v. State, 46 Neb. 390, 64 N.W. 1082."

The evidence in this case, if believed by the triers of fact, discloses beyond a reasonable doubt that Rufus A. Porter, then a railway employee, indorsed a check of $79.96, received for wages, and delivered the same to defendant Adams for the latter to cash and return the proceeds thereof to Porter, who was to take up his cash on the same evening; that Adams cashed the check and not only failed to deliver the proceeds to Porter, the owner thereof, but absconded and converted the same to his own use. Under these facts, one entrusted with a check to cash and to return the proceeds to the owner, having cashed the check and received the proceeds in cash, is a bailee of such proceeds, within the meaning of section 28-547, Comp.St.1929, and if these proceeds are converted by this bailee to his own use with intent to steal the same, the bailee is guilty of a violation of the section referred to.

See State v. Dohn, 216 Wis. 367, 257 N.W. 21; State v. Carr, 118 N.J.L. 233, 192 A. 36; Commonwealth v. Weddle, 176 Ky. 780, 197 S.W. 446; State v. Fraley, 71 W.Va. 100, 76 S.E. 134, 42 L.R.A.N.S., 498; Ford v. State, 46 Neb. 390, 64 N.W. 1082; Larson v. State, 107 Neb. 800, 186 N.W. 981; Frades v. State, 131 Neb. 811, 270 N.W. 314.

The defendant challenges as erroneous the action of the trial court in admitting over objections evidence that, on the same day that the Porter check was received by defendant, other checks from other employees of the railway were likewise received by the defendant for the purpose of cashing them and returning the funds so received to the owners of the checks cashed, and that these funds were likewise unlawfully converted by defendant to his own use. In a case involving similar principles this court employed the following language, viz.:

" ‘ The general rule is that evidence of the participation by an accused person in the commission of a crime, other than that for which he is placed on trial, cannot ordinarily be admitted in evidence against him. But the rule has its exceptions which are as well established as the rule itself, and may be applied in a given case, not to establish the other crime but as confirmatory of the evidence tending to show the commission by defendant of the crime for which he is being tried.' Welter v. State, 112 Neb. 22, 198 N.W. 171.

" Whether proof of the unlawful conversion of goods by defendant, for which he was not informed against, tended to prove the unlawful conversion of goods, which he was charged with having converted, is a question of fact for the jury. Welter v. State, 112 Neb. 22, 198 N.W. 171." Smith v. State, 114 Neb. 445, 208 N.W. 126.See, also, Davis v. State, 58 Neb. 465, 78 N.W. 930; State v. Routzahn, 81 Neb. 133, 115 N.W. 759, 129 Am.St.Rep. 675; Bode v. State, 80 Neb. 74, 113 N.W. 996; Buckley v. State, 131 Neb. 752, 269 N.W. 892.

It follows that the introduction of the evidence objected to was proper and the instructions of the trial court relating thereto, challenged by the defendant, are approved.

The defendant insists that reversible error was committed when the county attorney who prosecuted the case, in his opening statement to the trial jury, employed the following language " And the evidence will further show that in county court he (the defendant) pleaded guilty to the charge and later changed his plea in this court." The proceeding in the county court referred to by the county attorney was not a trial of the defendant but a preliminary examination accorded him in the county court on the charges then before the district court. The record further discloses that the state sought to establish how defendant pleaded at his preliminary examination but on objections of defendant this evidence was excluded. Later the defendant was called as a witness in his own behalf and testified on his examination in chief, without objection, as follows: " A. Then they took me down before Judge Bohkle right...