Bartels v. State
| Decision Date | 29 May 1912 |
| Docket Number | No. 17,375.,17,375. |
| Parties | BARTELS v. STATE. |
| Court | Nebraska Supreme Court |
The act of 1907 (Laws 1907, c. 167 [Criminal Code, § 117c]), defining poultry stealing and providing a penalty therefor, does not violate that part of section 11, art. 3, of the Constitution, which provides: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.”
An instruction in a criminal prosecution that the rule that requires proof of guilt, beyond a reasonable doubt, “is not intended to aid any one, who is in fact guilty, to escape,” and which intimates that an acquittal must be justified, and a verdict of not guilty must be “authorized,” is erroneous. In the condition of this record, it is found to be prejudicially erroneous.
The evidence is discussed in the opinion, and is found insufficient to support a conviction.
Under the act of 1907 (Laws 1907, c. 167), defining and providing a penalty for poultry stealing, if the value of the property stolen is less than $35, the penalty as for a felony should not be inflicted, except in cases of habitual crime, or when the act is accompanied with circumstances of aggravation.
“Poultry,” defined as domestic fowls reared for the table, or for their eggs or feathers, includes pigeons, if reared for the table.
Error to District Court, Dakota County; Graves, Judge.
William Bartels was convicted of theft, and brings error. Reversed and remanded.
G. G. Martin, for the State.
The defendant (plaintiff in error here) was convicted in the district court for Dakota county under chapter 167, Laws 1907 (Criminal Code, § 117c). The section is as follows: “If any person shall steal any chickens, ducks, turkeys, geese, pigeons, or guineas, of any value or, if any person shall receive or buy any chickens, ducks, turkeys, geese, pigeons or guineas, that shall have been stolen, knowing the same to have been stolen, with intent, by such receiving or buying to defraud the owner;or, if any person shall conceal a poultry or pigeon thief, knowing him to be such; or, if any person shall conceal any chickens, ducks, turkeys, geese, pigeons or guineas, knowing the same to have been stolen; every such person so offending shall be imprisoned in the county jail not less than ten days nor more than six months or in the state penitentiary for not more than three years nor less than one year, in the discretion of the court.”
[1] 1. It is contended that the act violates section 11, art. 3, of the Constitution: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.” It is said that “if it is permitted to stand it amends section 119 of the Criminal Code, and makes no reference to section 119; nor does it pretend to repeal that section.” A similar act is considered and upheld in the recent case of Wallace v. State, 135 N. W. 549. That was a prosecution for hog stealing under section 117b of the Code. Former decisions of this court are referred to, and the discussion and conclusion are entirely applicable to the question here presented.
[5] 2. It is also contended that the act is unconstitutional, because more than one subject is contained in the title and in the act. The title of the act is: “An act to provide a penalty for stealing live poultry or pigeons, for receiving, buying or concealing live poultry or pigeons, knowing the same to have been stolen, and for concealing poultry or pigeon thieves.” The point insisted upon appears to be that poultry and pigeons are two different subjects of legislation, and cannot be legislated upon in the same act Poultry, according to the definition in Webster's New International Dictionary is: “(2) Domestic fowls reared for the table, or for their eggs or feathers, such as cocks and hens, capons, turkeys, ducks and geese.” Pigeons, if “reared for the table,” are within the definition. The fact that pigeons are poultry, and might have been considered as included in that term, will not affect the question. If the title of the act had specifically named other poultry, as turkeys and geese, it would probably not be contended that for that reason the act is unconstitutional.
[3] 3. It is objected that the evidence is not sufficient to support the verdict. The witness Frank Phillips testified that in January of last year he was employed by the defendant as a farm hand, and that on the evening of about the 25th of January the defendant requested the witness and one Chester Ream to go with him to the place of one Bridenbaugh and steal his chickens; that they went accordingly, and defendant took some sacks from his granary to carry them in, and they made three several trips, each time filling three several sacks, stealing in all 56 chickens; that they took the chickens to the defendant's place and put them in an icehouse that night, where they remained until the following night, when the witness and the defendant went to the icehouse and cut off the tails of the roosters and placed them in the chicken house with the chickens of the defendant, and the following morning the little boy, about eight years old, opened the chicken house door and allowed the chickens to escape; that the defendant then put up a few feet of wire netting to keep the chickens from returning to their former owner. The defendant is a well to do farmer with 280 acres of land, where he has lived from 15 to 20 years, and has a family, consisting of his wife and, at that time, two children; and they had at that time quite a number of chickens of their own, at least several hundred. It was no theory of the prosecution that the defendant stole these chickens because of gain, or because of any use he had for them; but the witness testified that the defendant had shortly before that time bought some straw of Mr. Bridenbaugh, and had failed to get the straw he had paid for, and he became very angry with Mr. Bridenbaugh and proposed to steal these chickens to “get even with him.”
There is no evidence corroborating this testimony of the witness Phillips, unless the following circumstances should be thought to support his testimony: Mr. Bridenbaugh testified that a day or two after the chickens were taken he was at the defendant's place, and saw a large number of chickens, two or three hundred, and among them he saw two or three that had their tails cut off. He testified that he thought he saw some of his chickens there; but he did not pretend to identify them, and being asked: ...
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