Benedict v. State

• Decision Date: 28 March 1958
• Docket Number: No. 34278,34278
• Citation: 89 N.W.2d 82,166 Neb. 295
• Parties: Robert D. BENEDICT, Plaintiff in Error v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 82

89 N.W.2d 82

166 Neb. 295

Robert D. BENEDICT, Plaintiff in Error v. STATE of Nebraska, Defendant in Error.

No. 34278.

Supreme Court of Nebraska.

March 28, 1958.

Syllabus By The Court

1. An information must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense.

2. The information must expressly and directly state each fact that is an essential element of the crime intended to be charged so that the accused will not be required to go beyond the information to learn the nature of the charge against him or the issue he must meet. It cannot be aided by intendment, by anything stated therein by way of mere recital, or by inference or implication.

3. In charging the commission of an offense in an information it is not necessary that the exact words of the statute be used, provided the words employed are the equivalent in meaning of those contained in the statute.

4. It shall be sufficient in any information, where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud without alleging an intent to defraud any particular person or body corporate.

5. This court takes judicial notice of the fact that a bill of exceptions was not prepared, served, returned, or settled and allowed within the time provided by statute, or as extended by the trial judge or this court.

6. A trial judge is without authority to settle and allow a bill of exceptions not prepared in the manner and within the time fixed by the statute.

7. In the absence of a bill of exceptions there is no question of fact determined by the district court for review in this court and no question will be considered here, a determination of which necessitates an examination of evidence produced in the trial court.

Joseph M. Lovely, Adolph Q. Wolf, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., John E. Wenstrand, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE and BOSLAUGH, JJ.

WENKE, Justice.

This is an error proceeding from the district court for Douglas County. In an amended information therein filed on March 26, 1957, it was charged, insofar as here material, that: '* * * on or about the 18th day of February in the year of our Lord one thousand nine hundred fifty-six ROBERT D. BENEDICT * * * did, with the intent to defraud, utter or publish as true and genuine, a false, forged, and counterfeited check for the payment of money, which bank check was of the following tenor, towit:

WESTERN FLAVOR SEAL COMPANY

No. 15409

OMAHA, NEBR., February 15, 1956

27-6 1040

PAY $92 and 71 cts $92.71

WESTERN FLAVOR SEAL COMPANY

TO THE ORDER OF

Thomas F. Bradley

3820 Dodge St.

Omaha, Nebraska

R. T. Caldwell

G. D. Devereaux

the said defendant, ROBERT D. BENEDICT, well knowing said check to be false, forged, and counterfeited, contrary to the form of the Statutes in such cases made and provided, * * *.' A jury found the defendant guilty of the charge made against him and, after his motion for a new trial had been overruled on May 10, 1957, he was sentenced by the court to serve a term of 7 years in the State Penitentiary. Defendant thereafter filed a petition in error in this court on June 7, 1957. We shall herein refer to the petitioner in error as the defendant.

Defendant claims the information does not state a cause of action in that it does not charge that the instrument was published with the intent to prejudice, damage, or defraud any person or persons, party politic or corporate.

The statute, under and pursuant to which the charge was made, provides, insofar as here material, that: '* * * whoever shall utter or publish as true and genuine or cause to be uttered or published as true and genuine or shall have in his possession with intent to utter and publish as true and genuine, any of the above-named false, forged, counterfeited, falsely printed or photographed matter, above specified and described (which includes a check for the payment of money), knowing the same to be false, altered, forged, counterfeited, falsely printed or photographed, with intent to prejudice, damage or defraud any person or persons, body politic or corporate, * * *.' Section 28-601, R.R.S.1943.

The defendant contends that since this statute requires that the instrument be uttered 'with intent to prejudice, damage or defraud any person or persons, party politic or corporate' and since the amended information fails to set out these essential elements of the crime charged it therefore fails to charge a crime, is void, and gives the court no jurisdiction in regard thereto. It will be noted that the information does not specifically name any person or persons, body politic or corporate that the defendant was intending to defraud by uttering or publishing the forged check nor does it include the words 'prejudice' and 'damage' in charging what were his intentions in uttering or publishing the check.

We said in May v. State, 153 Neb. 369, 44 N.W.2d 636, 638, that: 'An information must inform the accused with reasonable certainty of the charge against him that he may prepare his defense and be enabled to plead the judgment thereon as a bar to a later prosecution for the same offense. * * * It must state expressly and directly each fact that is an essential element of the crime intended to be charged so that the accused will not be required to go beyond the information to learn the nature of the charge against him or the issue he must meet, and it cannot be aided by intendment, by anything stated therein by way of mere recital, or by inference or implication.'

It will be noted that the words used in the statute dealing with the intent with which a false, forged, or counterfeited check for the payment of money is uttered or published as true and genuine by anyone knowing the same to be false, forged, or counterfeited, are in the disjunctive so that the use of any one thereof to describe the intent with which the act was done would be sufficient.

Black's Law Dictionary (1891 Ed.) includes, in its definition of these words, the following:

Damage--'Loss, injury, or deterioration, caused by the * * * design * * * of one person to another, in respect of the latter's person or property.' P. 315.

Prejudice--'* * * means injury, loss, * * *.' P. 928.

Defraud--'* * * to deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice.' P. 347.

It thus becomes evident that the use of the word 'defraud' would include the meaning of the word 'damage' and also 'prejudice' as used in the statute. In Whitman v. State, 17 Neb. 224, 22 N.W. 459, we said: 'In charging the commission of an offense in an indictment, it is not necessary that the exact words of the statute be used, provided the words employed are the equivalents in meaning of those contained in the statute.' And in Peterson v. State, 64 Neb. 875, 90 N.W. 964, we said: 'An information which charges in the language of the statute, or in words equivalent thereto, the commission of an offense as therein denounced is sufficient, and such information is invulnerable to a demurrer.'

Section 29-1506, R.R.S.1943, provides: 'It shall be sufficient in any indictment where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud without alleging an intent to defraud any particular person or body corporate, and on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with intent to defraud.'

In Davis v. State, 58 Neb. 465, 78 N.W. 930, we held that: "It shall be sufficient in any indictment where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud without alleging an intent to defraud any particular person or body corporate.' * * *.'

Section 29-1604, R.R.S.1943, provides: 'The provisions of the criminal code in relation to indictments, and all other provisions of law, applying to prosecutions upon indictments to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments or the execution of any sentence, and to all other proceedings in cases of indictments, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as nearly as may be, apply to informations, and all prosecutions and proceedings thereon.'

In view of what we have hereinbefore said and held, we find defendant's contention that the amended information does not charge a crime under section 28-601, R.R.S.1943, to be without merit.

The defendant...