Dickens v. State

• Decision Date: 07 March 1941
• Docket Number: 30942
• Citation: 296 N.W. 869,139 Neb. 163
• Parties: GEORGE DICKENS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

296 N.W. 869

139 Neb. 163

GEORGE DICKENS v. STATE OF NEBRASKA

No. 30942

Supreme Court of Nebraska

March 7, 1941

ERROR to the district court for Douglas county: FRANCIS M. DINEEN JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. " To charge a statutory offense, the information or complaint must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent." Dutiel v. State, 135 Neb. 811, 284 N.W. 321.

2. An allegation that the person, firm or corporation picketed was as a result of the picketing, induced or coerced against his, their or its will, or intimidated or threatened to do something, he, they or it might legally refrain from doing, or to refrain from doing something which may be lawfully done is an essential element of a sufficient charge of crime under section 28-813, Comp.St.1929.

3. The defect in the complaint herein was not one of technical procedure, but was one involving a rule of substance.

4. " In this state all public offenses are statutory; no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law." Lane v. State, 120 Neb. 302, 232 N.W. 96.

5. " Before this court can rule on the question as to whether or not an act of the legislature creating a crime invades the constitutional rights of a person, it must be presented with a case where the issues and the evidence would support a conviction if the statute is valid." Dutiel v. State, 135 Neb. 811, 284 N.W. 321.

Error to District Court, Douglas County; Dineen, Judge.

George Dickens was convicted in the municipal court and on appeal in the district court, for picketing in violation of Comp.St.1929, § 28-813, and he brings error.

Reversed.

CARTER, ROSE, and PAINE, JJ., dissenting.

To charge a statutory offense, information or complaint must contain a distinct allegation of each essential element of the crime as defined by law creating it, either in language of statute or its equivalent.

David D. Weinberg and Louis T. Carnazzo, for plaintiff in error.

Walter R. Johnson, Attorney General, and Edwin Vail, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ. CARTER, J., ROSE and PAINE, JJ., dissenting.

OPINION

YEAGER, J.

On December 9, 1939, a complaint was filed in the municipal court of the city of Omaha, Douglas county, Nebraska, wherein plaintiff in error, hereinafter referred to as the defendant, was charged as follows: "That George Dickens on or about the 8th day of December A. D., 1939, in the county aforesaid and within the corporate limits of the city of Omaha aforesaid, then and there being did unlawfully patrol, loiter about and picket by means of a banner carried by him on the street and sidewalk in front of the lawful place of business of the Central Storage & Van Company, 1101 Jackson street, Omaha, Nebraska, said sign bearing the inscription 'Central Van Unfair To Labor-General Drivers' Union Local 554 A F of L' with the intent of inducing and influencing others not to trade with, or have business dealings with said company thereby maliciously obstructing, interfering with and damaging the lawful business of said company, and said company itself with the intent of intimidating and threatening said company for the unlawful purpose of inducing and coercing said company to operate its business in a manner it may legally refrain from doing or to refrain from operating its business in the proper peaceful and lawful manner which it may otherwise lawfully do, contrary to the statutes of the state of Nebraska, in such cases made and provided and against the peace and dignity of the state of Nebraska."

The defendant was tried in the municipal court, found guilty and sentenced to pay a fine. From the sentence so imposed he perfected an appeal to the district court for Douglas county, Nebraska.

On February 1, 1940, the defendant moved to quash the complaint, assigning various grounds in his motion. The motion was overruled. Following the ruling on the motion he demurred, assigning the same grounds as were the basis for his motion to quash. The demurrer was overruled. Following the ruling on the demurrer a motion to dismiss was made, assigning the same grounds as were set forth in the motion to quash and in the demurrer. This motion was also overruled. Thereafter on the same day the defendant was arraigned and pleaded not guilty. The case then proceeded to trial to the court, a jury having been waived, on the complaint originally filed in the municipal court, the substantial portions of which have been hereinbefore set forth.

On the trial of the case no witnesses were called to testify on behalf of either the state or the defendant. The evidence upon which the case was submitted for determination and decision was a stipulation of facts signed by the county attorney and his deputy on the one hand and the attorneys for the defendant on the other. The portion of the stipulation which is descriptive of the alleged violation of law and is the basis of the criminal prosecution herein is as follows:

"It is further stipulated and agreed that on the 9th day of December, 1939, the Central Van & Storage Company was a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska, being located at 1101 Jackson street, in the city of Omaha, Nebraska, and there engaged in a lawful business and was the owner of the building in which said business was located; that prior thereto and on or about the 13th day of September, 1938, a labor dispute arose between the Central Van &amp Storage Company and the General Drivers' Union Local 554, A. F. of L. and that at all times since said date said labor dispute has continued and still continues in effect; that on the 9th day of December, 1939, said company was operating its business and was using in the operation thereof nonunion men; that the defendant herein, George Dickens, a union truck driver and a member of the General Drivers' Union, Local 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, and the American Federation of Labor, together with one other union member, did walk to and fro on the public sidewalk in front of the building of the Central Van & Storage Company, each carrying a banner, which banner was approximately 24x30 inches in size and which read as follows: 'Central Van & Storage Company Unfair to Labor-General Drivers' Union, Local 554, A. F. of L.,' a photostatic copy of which banner is hereto attached, marked exhibit 'A' and exhibit 'B', respectively.

"It is further stipulated and agreed that said walking to and from and bearing said banners was done at the instance of the General Drivers' Union, Local 554, a nonincorporated labor organization, the membership of which consisted entirely of local truck drivers, and some of the members of said Drivers' Union previous to the arising of said labor dispute had been employees of the Central Van & Storage Company, and other van and storage and transfer companies in the city of Omaha; that said walking to and fro and bearing said banners was for the purpose of acquainting the public with the fact that a dispute affecting labor existed between the Central Van & Storage Company and organized labor, and for the purpose of procuring said work for the union members; that previous to the labor dispute a relationship of employer and employee existed between the Central Van & Storage Company, and the defendant herein, and that there was a labor dispute in progress between the Central Van & Storage Company and its union employees.

"It is further stipulated that said walking to and fro. bearing said banners, was done quietly, without physical force or violence and without threats thereof, nor did said defendant commit any act or acts tending thereto; that said walking to and fro, bearing banners, was maintained and carried on by said defendant and the other person named for the purpose of influencing and inducing truck drivers not to work for or deal with said company, and to advise and inform the public and persons seeking the services of the said Central Van & Storage Company, that the work being carried on by said Central Van & Storage Company was being done in a manner and under conditions deemed by said union to be unfair to organized labor and thereby seeking to...