Hunt v. State

• Citation: 11 N.W.2d 533,143 Neb. 871
• Decision Date: 29 October 1943
• Docket Number: 31617.
• Parties: HUNT v. STATE.
• Court: Supreme Court of Nebraska

11 N.W.2d 533

143 Neb. 871

HUNT v. STATE.

No. 31617.

Supreme Court of Nebraska

October 29, 1943

Syllabus by the Court.

1. The general rule is that a defect in the manner of charging an offense is waived if, upon being arraigned, the defendant pleads to the general issue, provided the information contains no jurisdictional defect and is sufficient to charge an offense under the law.

2. The governing principle is that an information is fatally defective only if its allegations can be true and still not charge a crime.

3. An information questioned for the first time on appeal must be held sufficient unless so defective that by no construction can it be said to charge the offense for which accused was convicted.

4. An information charging a violation of section 69-109 Comp.St.1929, is not fatally defective because it fails to allege the name of the person or body corporate to whom the sale or transfer was made. In so far as State v. Hughes, 38 Neb. 366, 56 N.W. 982, conflicts herewith, it is overruled.

Daniel E. Owens, of Benkelman, and V. H. Halligan, of North Platte for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Carl H. Peterson, Asst. Atty Gen., for defendant in error.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

Plaintiff in error, hereinafter called defendant, was found guilty by a jury in the district court for Lincoln county, Nebraska, of the unlawful sale, transfer, and disposal of mortgaged personal property, under section 69-109, Comp.St.1929. The trial court overruled defendant's motion for new trial and sentenced him to one year in the penitentiary, whereupon he prosecuted error to this court, contending that the information does not state an offense punishable by the laws of the state of Nebraska because it does not allege the name of the person or body corporate to whom the mortgaged property was sold. Defendant also contends that the penalty imposed was excessive.

The record discloses that upon arraignment defendant pleaded not guilty to the information, and no objections thereto were ever made by him either before, during the trial, or thereafter, in any manner or form. His contention that the information does not state an offense is raised for the first time in the brief and oral argument to this court. Ordinarily, objections not presented to the trial court are not available on review. Lorimer v. State, 127 Neb. 758, 257 N.W. 217; Green v. State, 116 Neb. 635, 218 N.W. 432. The general rule is that a defect in the manner of charging an offense is waived if, upon being arraigned, the defendant pleads to the general issue, provided the information contains no jurisdictional defect and is sufficient to charge an offense under the law. "Accordingly the sufficiency of the *** information *** cannot ordinarily be determined in the first instance by the appellate court, especially where the evidence is sufficient to sustain a conviction; but, where the *** information is fatally insufficient in that it fails to charge a crime, the objection, in the absence of a statute to the contrary, may generally be raised for the first time on appeal ***. An indictment [or information] questioned for the first time on appeal, however, must be held sufficient, unless so defective that by no construction can it be said to charge the offense for which accused was convicted." 24 C.J.S., Criminal Law, p. 271, § 1671. See, also, 17 C.J. 54, 55; 16 C.J. 403; 22 C.J.S., Criminal Law, § 424; State v. O'Grady, 137 Neb. 824, 291 N.W. 497; Wiese v. State, 138 Neb. 685, 294 N.W. 482; Maxwell, Criminal Procedure (2d Ed.) p. 555.

The statute, section 69-109, Comp.St.1929, provides: "Any person who, after having conveyed any article of personal property to another by mortgage, shall, during the existence of the lien or title created by such mortgage, sell, transfer, or in any manner dispose of the said personal property, or any part thereof so mortgaged, to any person or body corporate, without first procuring the consent, in writing, of the owner and holder of the debt secured by said mortgage, to any such sale, transfer, or disposal, shall be deemed guilty of a felony, and, upon conviction thereof, shall be fined in any sum not less than one hundred dollars, or imprisoned in the penitentiary for a term not less than one year nor more than ten years, or both." (Italics supplied.)

In State v. Butcher, 104 Neb. 380, 177 N.W. 184, we said:

"The doing of the inhibited act constitutes the crime. The statute [now section 69-109, Comp.St.1929] was enacted to prevent the fraudulent transfer of mortgaged chattel property.

"An examination of the history of this statute to its present form clearly indicates the purpose of the Legislature to be the protection of the mortgagee in his security, and to permit him to have the full value of the chattel property applied to the mortgage debt. *** Under this statute the state makes out a prima facie case when it has established beyond a reasonable doubt the execution and delivery of a valid chattel mortgage, and the sale of the chattel mortgaged property during its life without the written consent of the mortgagee." See, also, State v. Hurds, 19 Neb. 316, 27 N.W. 139; Fiehn v. State, 124 Neb. 16, 245 N.W. 6.

The information in question is not claimed to be defective in any manner except for failure to name the person or corporation to whom the mortgaged property was sold.

The governing principle is that an information is fatally defective only if its allegations can be true and still not charge a crime. See State v. Isaacson, 155 Minn. 377, 193 N.W. 694. It is sufficient if the offense is so stated in the information as to enable the court, looking alone to the information and the verdict, to impose the sentence prescribed by law. See State v. Perry, 87 S.C. 535, 70 S.E. 304.

In McKenzie v. State, 113 Neb. 576, 204 N.W. 60, we said: "When an information alleges all the facts or elements necessary to constitute the offense described in the statute and intended to be punished, it is sufficient."

In Trosper v. State, 128 Neb. 165, 258 N.W. 62, 63, a prosecution for blackmail, where one objection was that the information contained no allegation as to the ownership of the property demanded, this court reaffirmed the above rule, and said: "The information in this case sufficiently charges a crime, the elements of which are defined by the statute. The criticism of the information is highly technical. Nobody was misled by it or misunderstood the charge made against the defendant. The technical rules of the common law are relaxed in this state. Nichols v. State, 109 Neb. 335, 191 N.W. 333. To hold this information insufficient would be to recede from our advanced position in the Nichols case and restore in part at least the old, cumbersome and involved form of information which served no useful purpose in the administration of justice. We are not willing to do this."

Likewise, in Buckley v. State, 131 Neb. 752, 269 N.W. 892, 894, "The information in this case sufficiently charges a crime, the material elements of which are defined by statute. The objection of the defendant to the indictment filed against him is very technical. Super-technical rules in the drawing of complaints, informations and indictments have been abandoned by this court in recent years where it appears that the defendant was not misled and understood the charge against him."

The legislature long ago took cognizance of, and approved, this field of judicial construction by providing in section 29-1501, Comp.St.1929, "No indictment shall be deemed invalid *** for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Also, section 29-2308, Comp.St.1929, "*** No judgment shall be set aside, or new trial granted, or judgment rendered, in any criminal case on the grounds *** or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred."

Defendant relies exclusively upon State v. Hughes, 38 Neb. 366, 56 N.W 982, an opinion written by this court on November 21, 1893. The case is distinguishable at...