Herold v. State

• Decision Date: 06 January 1887
• Citation: 31 N.W. 258,21 Neb. 50
• Parties: HEROLD v. STATE.
• Court: Nebraska Supreme Court

21 Neb. 50

31 N.W. 258

HEROLD

v.STATE.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

Section 28 of chapter 32 of the Compiled Statutes, being chapter 46 of the Session Laws of 1883, in so far as it prohibits the fraudulent sale, transfer, secretion, incumbrance, or disposal of property with intent to defraud creditors, is constitutional and valid.

Instructions prayed for, and refused, examined, and held to have been properly refused.

Error to district court, Lancaster county.

Information under Comp. St. Neb. c. 32, § 28, for selling, transferring, etc., a stock of goods with intent to defraud, etc.

MAXWELL, C. J., dissenting.L. C. Burr, M. A. Hartigan, and Sam. M. Chapman, for plaintiff in error.

Wm. Leese, Atty. Gen., for the State.

REESE, J.

An information, consisting of three counts, was filed in the district court of Lancaster county against plaintiff in error, by the district attorney, charging a violation of section 28 of chapter 32 of the Compiled Statutes. The first two counts of the information are substantially the same, the charges varying only in form; the allegations being that plaintiff in error “did unlawfully, fraudulently, and feloniously sell, transfer, secrete, incumber, and dispose of” a stock of goods, with intent to defraud, etc. The trial resulted in a verdict of guilty as charged in the first and second counts of the information, and not guilty as charged in the third count. From the judgment on the verdict plaintiff in error brings error to this court.

The first contention is that the law under which the conviction was had, is unconstitutional and void. This is based upon the alleged failure of the act to comply with the provisions of section 11 of article 3 of the constitution. The act of the legislature, from which the section above referred to is taken, was passed in 1883, and may be found on page 230 of the Session Laws of that year. The provision of the constitution invoked is that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title.”

The title to the act in question is as follows: “An act to prohibit the fraudulent transfer of property, and to declare the same a crime, and to prescribe the punishment thereof.” It is insisted that “there are several separate and distinct offenses grouped and combined together in this act that in no way or manner are related to the title to the act.” As we have seen, the title of the act is to prevent a fraudulent transfer of property. The body of the act is as follows: “If any person or persons in this state, with intent to cheat or defraud his creditors, or any of them, or with the fraudulent intent to hinder or delay his creditors, or any of them, in the collection of his or her demands, shall sell, transfer, secrete, incumber, or in any way fraudulently dispose of, any or all of his goods, wares, merchandise, chattels, bills receivable, choses in action, or property of any kind, or who, upon any sale of any goods, wares, merchandise, or property of any kind, with a fraudulent intent to hinder or delay, or to cheat or defraud, his creditors, or any of them, shall secrete, assign, transfer, conceal, or in any way fraudulently dispose of, all or any part of the proceeds of such sale, or any property, he or they shall be deemed guilty of a fraudulent transfer of property, and, upon conviction thereof, shall be punished in the same manner, and to the same extent, as if he had been convicted of the larceny of the same property.”

It is urged that this act is amendatory of the act of 1877, (Sess. Laws 1877, p. 5; Comp. St. § 9, c. 12,) and that no greater latitude can be given to the amendatory act than to the original one; and therefore the holding in Ex parte Thomason, 16 Neb. 238, S. C. 20 N. W. Rep. 312, must apply to this case. We think this argument is clearly met in Jones v. Davis, 6 Neb. 33. The act in question is clearly independent and competent in itself, is not amendatory of any other law, and is not restricted by any part of the act of 1877. Neither do we think the act under consideration is in conflict with section 11 of article 3 of the constitution. The act has but one subject, and that subject is “clearly expressed in the title.” The purpose of the law, as expressed in the title, is to prohibit the fraudulent transfer of property, etc. It is nowhere sought to make the secretion, sale, incumbrance, or fraudulent disposition of property an offense as such, but the legislature has seen proper to declare all or any of such acts “a fraudulent transfer of property.” This definition is furnished by the act itself, and the definition is as much a part of the act as any other portion. The right of the legislature to prescribe the legal definitions of its own language must be conceded. Neither does the definition prescribed do any violence to the ordinary use of the language, when applied to the use of property in such a way as to hinder, delay, or defraud creditors.

There is a clear distinction between the principle involved in this case and that of Ex parte Thomason, supra. In that case no effort was made by the law-making power to give any legal meaning to any of the terms used. The language of that part of the act which was held valid was, in substance, the same as contained in that part of the act under consideration, under which the information was filed. In the former act the language is, “sell, transfer, or in any manner dispose of.” In the act in question it is, “sell, transfer, secrete, incumber, or in any way fraudulently dispose of.” The word “secrete” is the only one to which any objection could be made, and we think it clearly falls within the legal meaning given it by the legislature, when applied to the fraudulent use of property. We therefore hold, in so far at least as is applicable to the case at bar, the law is constitutional and valid.

This disposes of all the questions presented by the brief of the plaintiff in error, and substantially all presented by the petition in error, except as to the ruling of the trial court in the refusal of instructions asked by plaintiff in error. Of these the first only need be noticed. It is as follows:

“The state prosecutes the defendant in this case under the act of February 21, 1883, entitled ‘An act to prohibit the fraudulent transfer of property, and to declare the same a crime, and to prescribe the punishment therefor.’

Before the jury can find the defendant guilty, they must be satisfied, beyond a reasonable doubt, not only that the defendant transferred his property, or some part thereof, but that such transfer was made with the fraudulent intent to hinder or delay his creditors, or some of them, if the jury find from the evidence that he had creditors.

To ‘transfer’ means to convey or pass over the right of one person in property to another, as to sell. It is the act by which the owner of property delivers it to another person,...