Dutiel v. State
| Decision Date | 24 February 1939 |
| Docket Number | 30383. |
| Citation | 284 N.W. 321,135 Neb. 811 |
| Parties | DUTIEL v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " 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.
2. 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.
3. 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.
Error to District Court, Douglas County; Rhoades, Judge.
Edgar Dutiel was convicted of picketing in violation of Comp.St.1929, § 28-813, and he brings error.
Reversed and dismissed.
O. M Olsen and John M. Berger, both of Omaha, for plaintiff in error.
Richard C. Hunter, Atty. Gen., and Edwin Vail, Asst. Atty. Gen., for the State.
Swarr, May & Royce, of Omaha, amicus curiae .
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.
On January 19, 1938, a complaint was filed against the plaintiff in error, hereinafter referred to as the defendant, in the municipal court of Omaha, Douglas county, Nebraska, in which it was charged that " Edgar Dutiel on or about the 15 day of January, A. D. 1938, in the county aforesaid and within the corporate limits of the city of Omaha aforesaid, then and there being did violate section 28-813, Compiled Statutes of Nebraska, for 1929 in that he did unlawfully loiter about, patrol, beset and picket, by means of carrying banners upon his person, and walking to and fro on the sidewalk in front of the place of business of Phillip Greenberg, located at 4935 South 24th Street, Omaha, Nebraska, where said Philip Greenberg was engaged in a lawful business, for the purpose of inducing and influencing and attempting to influence and induce others not to trade with, buy from and have business dealings with said Phillip Greenberg, so that thereby the said lawful business of the said Phillip Greenberg was obstructed and interfered with, contrary to the Statutes of state of Nebraska, in such cases made and provided and against the peace and dignity of the State of Nebraska."
In the municipal court the defendant failed to plead; a plea of not guilty was entered by the court; and the defendant was tried, convicted, and sentenced to pay a fine of $10 and costs of prosecution.
An appeal was taken to the district court for Douglas county. The original complaint was refiled in that court. The defendant filed a motion to quash the complaint, and, among others, assigned the following reason therefor: " Because all of the acts alleged to have been committed by the defendant, and all of the things done by the defendant do not constitute a violation of any statute or rule of law." The motion was overruled by the trial court.
The defendant then filed a demurrer to the complaint, " for the reason that the facts stated in said complaint and information do not constitute an offense or crime punishable by the laws of the state of Nebraska" and assigned eight additional reasons therefor, the sixth of which is as follows: " Because all of the acts alleged to have been committed by the defendant, and all of the things done by the defendant do not constitute a violation of any statute or rule of law." The demurrer was overruled by the trial court.
The defendant was then arraigned. He refused to plead, and the court entered a plea of not guilty. A trial by jury was waived. The case was submitted to the court on " a stipulation of the facts in controversy in this case." No other evidence was offered.
The defendant was found guilty, fined $10, and ordered to pay the costs of prosecution. Thereupon the defendant filed a motion for a new trial for the following reasons among others:
The motion for a new trial was overruled. The defendant, appealing to this court, in his petition in error alleges twelve errors of the trial court. We shall consider five of them, which are as follows:
In his brief filed herein, the defendant sets out as errors relied upon for reversal substantially the same reasons assigned in his petition in error.
The complaint is based upon an alleged violation of section 28-813, Comp.St.1929. In that act the legislature provided: " It shall be unlawful for any person or persons, singly or conspiring together,"
To do certain acts, which are: " To loiter about, beset, patrol, or picket in any manner the place of business or occupation of any person, firm or corporation engaged in any lawful business or occupation, or any street, alley, road, highway or other place, in the vicinity where such person, firm or corporation may be lawfully engaged, in his, their or its work, business or occupation; "
With certain purposes, which are: " For the purpose of inducing or influencing, or attempting to induce or influence, others not to trade with, buy from, sell to, work for, or have business dealings with such person, firm or corporation; "
With certain results, which are: " So that thereby (1) the lawful business or occupation of such person, firm or corporation will be obstructed, interfered with, injured, or damaged and (2) such person, firm or corporation thereby be induced or coerced against his, their or its will, intimi dated, or threatened, (a) to do something, he, they or it may legally refrain from doing, or (b) to refrain from doing something, he, they or it may lawfully do." (The numbers and letters in parentheses and the italics are ours.)
The following rules of construction are applied to this statute.
" In construing a statute, an imperative rule is that effect, if possible, must be given to every clause and part of the statute." State v. Swanson, 127 Neb. 715, 256 N.W. 872, 873, and cases there cited.
" 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. * * *
So, too, in construing or interpreting provisions of criminal law it is to be remembered that if any doubts of the meaning exist in penal laws they ought to be construed in favor of the accused." Lane v. State, 120 Neb. 302, 232 N.W. 96, 98.
" It is elementary that penal statutes are inelastic and must be strictly construed; they are never extended by implication." Preston v. State, 106 Neb. 848, 184 N.W. 925.
The doing of the acts, for the purposes, with the results set out in the statute are the elements of the offense.
Does the complaint herein contain a distinct allegation of each essential element of the crime as defined by the statute?
Without passing upon the sufficiency of the allegations of the complaint otherwise, it is evident that the complaint herein does not charge, nor attempt to charge, the occurrence of that element of the results of the alleged illegal acts which is set out in the following provision of the statute, which requires that such person, firm, or corporation shall " thereby be induced or coerced against his their or its will, intimidated, or threatened, (a) to do something, he, they or it may legally refrain from doing, or (b) to refrain from doing something, he, they or it may...
To continue reading
Request your trial
-
Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
...charge, trial according to the settled course of judicial proceeding, and a right to be discharged unless found guilty. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 Statute prohibiting granting of new trial if Supreme Court considers that no substantial miscarriage of justice has actually oc......
-
Neb. Const. art. I § I-11 Rights of Accused
...picketing cannot be determined where information on which defendant was convicted was insufficient to charge offense. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 Refusal to allow accused to cross-examine state's witness for bias and prejudice violated this section. Flannigan v. State, 124 N......