Griffith v. State
| Decision Date | 16 June 1913 |
| Docket Number | 17,957 |
| Citation | 142 N.W. 790,94 Neb. 55 |
| Parties | JOSEPH W. GRIFFITH ET AL. v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Morrill county: RALPH W. HOBART JUDGE. Affirmed: Sentence modified.
AFFIRMED.
E. D Clark and M. F. Harrington, for plaintiffs in error.
Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.
From a judgment of conviction in the district court for Morrill county, of the crime of cattle stealing, defendants have prosecuted error to this court.
The information charges plaintiffs in error, who will be referred to as defendants, with having stolen two red steers of the age of four years and of the value of $ 160, the property of Frank F. Peterson. The jury returned the following verdict As to defendant Joseph W. Griffith, Jr., the court adjudged that sentence should be suspended and the defendant released on parole. Defendant Joseph W. Griffith was sentenced to confinement in the penitentiary for a period of not less than three nor more than ten years, and pay the costs of prosecution. No exceptions were saved by defendants during the progress of the trial, nor was any motion for a new trial filed or bill of exceptions settled, so that the case stands before us on the information, the verdict of the jury, and judgment. The sole question presented is that the court erred in entering judgment at all against either of the defendants, for the reason that the verdict does not fix any value on the property alleged to have been stolen.
Defendants were prosecuted under section 117a of the criminal code, which provides: "If any person shall steal any cow, steer, bull, heifer, or calf, of any value, * * * every such person so offending shall be imprisoned in the penitentiary not more than ten years nor less than one year, and shall pay the costs of prosecution." This section of the code was adopted in 1895, and took effect July 6 in that year. Defendants rely upon McCoy v. State, 22 Neb. 418, 35 N.W. 202, McCormick v. State, 42 Neb. 866, 61 N.W. 99, Fisher v. State, 52 Neb. 531, 72 N.W. 954, Holmes v. State, 58 Neb. 297, 78 N.W. 641, and Armstrong v. State, 21 Ohio St. 357. McCoy v. State and McCormick v. State were both decided prior to the enactment of the section under consideration. At that time cattle stealing came under the general provisions of the criminal code as to larceny. Under the law as it then stood, a verdict like the one in the case at bar would be insufficient. Fisher v. State was a prosecution for cattle stealing. The offense was alleged to have been committed September 30, 1895, which it will be observed was shortly after the section under consideration took effect. The verdict in that case is similar to the one in the case at bar, in that it failed to find the value of the cattle stolen. The syllabus in that case reads: The discussion of the case by the writer of the opinion is very brief, and clearly shows that the court did not have in mind the new section of the criminal code. This appears from the fact that the opinion cites only section 488 of the code, and McCoy v. State and McCormick v. State, supra. After citing those two cases the opinion concludes (p. 532): "The case at bar is ruled by those decisions." This was an oversight on the part of the court and of the learned judge who wrote the opinion. The prosecution in that case was not under the code as to larceny generally, but under a distinctly independent section of the criminal code, complete within itself, which made the crime charged a definite and substantive crime, to be dealt with independently of the general provisions of the code as to larceny (Wallace v. State, 91 Neb. 158, 135 N.W. 549), and the case could not properly and should not have been held to be ruled by those decisions.
Holmes v. State, supra, was a prosecution under section 113a of the criminal code, enacted in 1887, which provides: "Every person who steals property of any value by taking the same from the person of another without putting said person in fear by threats or the use of force and violence, shall be deemed guilty of grand larceny, and shall, upon conviction thereof, be punished by confinement in the penitentiary for not less than one nor more than seven years." The verdict in that case found "the said defendant guilty of larceny from the person, as she stands charged in the information." Paragraph 1 of the syllabus reads: "A general verdict of guilty of the crime of larceny from the person, from which is omitted a statement of the value of the property alleged to have been stolen, is fatally defective." In that case, as in Fisher v. State, supra, the court proceeded upon the theory that section 488 applied. The cases cited in the opinion are McCoy v. State, McCormick v. State, Fisher v. State, and Armstrong v. State, supra.
In Armstrong v. State, the Ohio court seems to have fallen into the same error as this court did in Fisher v. State and Holmes v. State, viz., in holding that the case was governed by section 167 of their criminal code, which is substantially the same as our section 488, notwithstanding the fact that by the twenty-seventh section of the Crimes Act horse stealing was a made a penitentiary offense, "whatever may be the value of the animal stolen." The position of the Ohio court in a case of larceny from the person (which was Holmes v. State) is made clear in Harris v. State, 57 Ohio St. 92, 48 N.E. 284, and State v. Whitten, 82 Ohio St. 174, 92 N.E. 79, where it is distinctly held that a verdict upon the trial of an indictment for pocket picking which finds the defendant guilty of pocket picking in manner and form as charged in the indictment is sufficient to sustain judgment and sentence, although such verdict does not find and return the value of the property taken. It is true Armstrong v. State is not overruled in either Harris v. State, or State v. Whitten, but is distinguished as involving an offense against property, while the two later cases involve crimes against the person. This distinction is drawn from the fact that larceny is provided for in chapter 4, under the subtitle of "Crimes against Property," while pocket picking is provided for in chapter 3 of title 1 of the penal subdivision of the statutes, entitled "Crimes against the Person."
We deem it unnecessary to enter into a discussion of the provisions of the Ohio law referred to, or of the distinction drawn by that court, preferring to determine the case upon careful consideration of our own code in an effort to get right in its construction. We think this court went wrong in Holmes v. State, and on reading Keller v Davis, 69 Neb. 494, 95 N.W. 1028, we discover that this is not the first time we have doubted the soundness of that case. In the case just cited, in commenting upon section 488, supra, the opinion says (p. 496): "Our attention has not been called to any decision expressly holding that the section quoted is applicable to the larceny of horses, yet, by analogy at least, Holmes v. State, 58 Neb. 297, 78 N.W. 641, holds that it is, and, in the further consideration of this case, we will assume that it is." But in paragraph 2 of the syllabus it is held: "Whether the provisions of section 488 of the criminal code, requiring the...
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