Halbert v. State
| Decision Date | 06 October 1927 |
| Docket Number | 25934 |
| Citation | 215 N.W. 459,116 Neb. 1 |
| Parties | CHAPMAN HALBERT ET AL. v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed in part, and reversed in part.
AFFIRMED IN PART, AND REVERSED IN PART.
John C Mullen, for plaintiffs in error.
O. S Spillman, Attorney General, and Donald Gallagher, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
All three defendants were jointly charged and tried under section 9612, Comp. St. 1922. The first count charged them with stealing from George Parchen about 35 chickens of the value of $ 35, and the second count charged the defendants Louis Halbert and Mrs. Louis Halbert, father and mother of the other defendant, with receiving certain stolen chickens from the defendant Chapman Halbert and others unknown, knowing them to have been stolen from George Parchen. The jury found the defendant Chapman Halbert guilty and the other defendants not guilty on the first count and found the defendants Louis Halbert and Mrs. Louis Halbert guilty on the second count. The defendants were duly sentenced. The defendant Chapman Halbert accepted his sentence. The other defendants are here on proceedings in error. Unless otherwise described, they will be referred to as the defendants.
The chief complaint of the defendants is that the second count did not state that the stolen chickens alleged to have been received by the defendants had some value. Was this necessary?
Section 9612, provides: "Whoever steals any chickens * * * of any value or receives or buys any chickens * * * that shall have been stolen, knowing the same to have been stolen, with intent, by such receiving or buying, to defraud the owner * * * shall be imprisoned" as provided in the section.
This section makes it a substantive offense to steal or receive chickens of any value, as section 9598 makes stealing property of any value by taking from the person without putting in fear, as section 9602 makes stealing or receiving any stolen horse or its kind, of any value, as section 9603 makes the stealing or receiving stolen cattle, of any value, as section 9611 makes the stealing or receiving stolen hogs, of any value, and as section 9616 makes the stealing or receiving or buying of a stolen automobile, of any value, a substantive offense. The subject is not new. In Mares v. State, 112 Neb. 619, 200 N.W. 448, the cases prior to Griffith v. State, 94 Neb. 55, 142 N.W. 790, are referred to by Chief Justice Morrissey and overruled in so far as they support the contention of the plaintiffs in error. In that case, the defendant was charged with buying and receiving a stolen automobile. It should be noted that section 9616 contains the phrase "of any value" both in the part making it an offense to steal an automobile and in that part making it an offense to buy or to receive a stolen automobile, while in the instant case that phrase is omitted in section 9612 in the part of the section denouncing the unlawful receiving of stolen chickens, of which offense the defendants at bar were convicted. This court, in the Mares case, expressed the rule in the text of the opinion and in the syllabus as follows:
"In a prosecution under section 9616, Comp. St. 1922, it is neither necessary to allege in the information nor to find in the verdict the value of the property described."
These words evidently do not fully express what the author of the opinion and the court had in mind, for the information, quoted in the opinion, shows that the prosecutor in drawing the charge did not even allege that the automobile was of value and made no reference to value whatever. The interpretation of the statute by the court was, therefore, this: That the legislature, by the words "of any value," meant that stealing an automobile or knowingly buying a stolen automobile was an offense irrespective of value or without regard to its value, and thus did away with the necessity, not only of charging value, but also of finding any specific value. The theory upon which this rests is that of judicial notice of value, on the principle that courts take judicial notice of whatever is generally known within the limits of their jurisdiction. With reference to the value of money, the same question was raised in Reed v. State, 66 Neb. 184, 92 N.W. 321, where larceny from the person was the particular offense. The late Chief Justice Sullivan with his characteristic clarity, and with his saving touch of humor, said: Judges, as well as other people, in this jurisdiction, know that an automobile is of value. All know that chickens, alive and well enough to run around, are at least a basis upon which juries in this jurisdiction may ground a finding of some inferential value.
It should be noted, too, that the portion of section 9612 which denounces the receiving of stolen chickens, being the charge on which the defendants were convicted, omits any use of the word "value." Moreover, the general rule is "Where by statute an aggravated form of larceny is punishable without reference to the value of the goods stolen, the value need not be stated." 36 C. J. 826, sec. 301. Generally, a careful drawer of indictments and informations puts into the charge all the calls indicated directly or even by implication in the statute under which he is prosecuting; and in the discussion in Mares v. State, supra, this court suggested that, for the purposes of imposition of sentence, it was well to show the value of the property involved. However, we do not think the assignment of error before us is well taken, and we hold that in a prosecution under section 9612, Comp. St. 1922, it is not necessary to allege in...
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