Pandolfo v. State

• Decision Date: 23 January 1931
• Docket Number: 27466
• Citation: 234 N.W. 483,120 Neb. 616
• Parties: EGBERT PANDOLFO v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

234 N.W. 483

120 Neb. 616

EGBERT PANDOLFO v. STATE OF NEBRASKA

No. 27466

Supreme Court of Nebraska

January 23, 1931

ERROR to the district court for Dundy county: CHARLES E. ELDRED JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

" Where a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute." Cordson v. State, 77 Neb. 416, 109 N.W. 764.

" An information need not negative the exceptions of a statute which are not descriptive of the offense." Sofield v. State, 61 Neb. 600, 85 N.W. 840.

The provisions of section 14, art. 3, of the Constitution, should be liberally construed so as to uphold a provision in a legislative act which, though not specifically expressed in the title, is germane to the subject-matter, and comprehended within the objects and purposes, of the act.

Section 2, c. 32, Laws 1925, amending section 8115, Comp. St. 1922 is not unconstitutional by reason of the fact that the burden of proof as to exemptions, fixed by that section of the amendment, was not specifically stated in the title of the act; it was germane to exemptions, which was the subject of the act

Error to District Court, Dundy County; Eldred, Judge.

Egbert Pandolfo was convicted of selling securities without a permit, and he brings error.

Affirmed.

Victor Westermark and L. S. Harvey, for plaintiff in error.

C. A. Sorensen, Attorney General, and L. Ross Newkirk, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOSS, C. J.

The defendant was charged jointly with others with violating what is commonly called the "Blue Sky Law," by selling securities without first having obtained a permit. This defendant obtained a separate trial, was convicted and sentenced to two years in the penitentiary.

He assigns error on several grounds, the first of which is that the information does not state a crime. The information is laid under title V, art. XXI (sections 8114-8144) Comp. St. 1922, now chapter 81, art. 54, Comp. St. 1929. The term "securities" is defined under section 8114, Comp. St. 1922, now section 81-5401, Comp. St. 1929; the securities exempted from the act were defined in section 8115, Comp. St. 1922, as amended by section 1, ch. 32, Laws 1925, now section 81-5402, Comp. St. 1929; the application and permit are prescribed in section 8116, Comp. St. 1922, now section 81-5404, Comp. St. 1929; and the penalty for violation is found in section 8137, Comp. St. 1922, now section 81-5425, Comp. St. 1929.

In substance the information charged that on February 3, 1930, Egbert Pandolfo, in Dundy county, Nebraska, did wilfully, purposely, unlawfully and feloniously sell, negotiate for the issuance and sale of and take subscriptions for and promote the offering, issuance and sales of certain securities to K. L. West, residing in the state and not a dealer in such securities, the securities being known as Sque-e-ks-n-rattles of St. Cloud, Minnesota, which securities are not specifically exempt from the provisions of the statutes of 1922, without either the said association or defendant having first obtained a permit therefor from the department of trade and commerce.

It is assigned that the information does not state facts sufficient to constitute a crime. It is laid in the language of the statute and this is enough. Cordson v. State, 77 Neb. 416, 109 N.W. 764; Goff v. State, 89 Neb. 287, 131 N.W. 213; Philbrick v. State, 105 Neb. 120, 179 N.W. 398. Nothing in our statutes requires the information to state a multiplicity of sales. It is urged that the information was defective by reason of its failure to refer to the amendment of the statutes of 1922, made in the session of 1925. The exemptions under the old law, so far as they affected the type of securities here, were not changed by the 1925 amendment. "The simultaneous repeal and reenactment of a statute in terms, or in substance, is a mere reaffirmance of the original act, and not a repeal in the strict or constitutional sense of the term." State v. Bemis, 45 Neb. 724, 64 N.W. 348. In accord therewith are Schneider v. Davis, 109 Neb. 638, 192 N.W. 230; Gooch Milling & Elevator Co. v. Chicago, B. & Q. R. Co., 109 Neb. 693, 192 N.W. 231. The information need not specifically negative the exemptions set out in the statute as such. The answer to this claim of defective information are: (1) The information does negative the exemptions in general terms; (2) as already shown, the information follows the statute and is sufficient; and (3) "An information need not negative the exceptions of a statute, which are not descriptive of the offense." Sofield v. State, 61 Neb. 600, 85 N.W. 840; People v. Love, 310 Ill. 558, 142 N.E. 204; McKelvey v. United States, 260 U.S. 353, 67 L.Ed. 301, 43 S.Ct. 132.

Perhaps the most serious error assigned arises out of instructions by the court that the burden was upon the defendant to establish that the securities offered by him were within the exemptions allowed by the law. It is argued that instructions No. 3 and No. 7 which so stated that burden are based upon an...