Rema v. State
| Decision Date | 06 October 1897 |
| Citation | 72 N.W. 474,52 Neb. 375 |
| Parties | REMA v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Under section 412 of the Criminal Code, an indictment or information is not rendered fatally defective “for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly.”
2. An information for larceny is not to be quashed because it alleges that the offense was committed “on or about” a certain date.
3. An information which avers that the defendant “unlawfully and feloniously did steal, take, and drive away one cow, * * *” sufficiently charges that the taking was with the felonious intent to permanently deprive the owner of his property.
4. The jurisdiction of a justice of the peace is co-extensive with the territorial limits of his county, and a judgment rendered by him in a precinct thereof other than the one for which he is elected is not void on that account. Jones v. Church of Holy Trinity, 17 N. W. 362, 15 Neb. 81, followed.
5. An instruction will not be reviewed unless the record affirmatively discloses that an exception was taken thereto in the trial court.
6. When the owner of stolen chattels, or the person from whose immediate possession the same were taken, is examined as a witness, his testimony that he did not consent to the removal of the property is indispensable to a conviction for larceny.
7. Evidence held to sustain the verdict.
Error to district court, Keith county; Grimes, Judge.
Warren Rema was convicted of larceny, and he brings error. Affirmed.
A. F. Parsons, for plaintiff in error.
C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.
This was a prosecution for the crime of larceny, in the district court of Keith county. The information under which the accused was convicted charged that he on or about the 15th day of February, 1896, in the county of Keith, “unlawfully and feloniously did steal, take, and drive away one cow, color red, branded O (circle) on left hip, and branded O (circle) on left loin,” and of the value of $25, the personal property of the Equitable Farm & Stock Improvement Company, of Nebraska, Limited, a Nebraska corporation. The jury found the defendant guilty, and from a judgment which imposed a sentence to imprisonment for the term of 12 months in the state penitentiary he prosecutes error proceedings.
A motion to quash the information was denied, and this ruling is the first ground urged for a reversal. It is insisted that this motion should have been sustained because the offense is not alleged in the information to have been committed on a day certain, but “on or about” a specified date. The information is not defective for the reason suggested. If, in a prosecution for larceny, it is important that it be alleged in the information the exact date the offense occurred, there is no escaping the conclusion that the state is required to prove the transaction took place at the identical time averred, else the prosecution must fail. On the other hand, if such proof is not indispensable to a conviction of such crime, it logically follows that the allegation in the information as to the time the crime was committed is immaterial, and such information is not defective if it omits to state the time definitely and with precision. This court has held in a prosecution for rape that it is not necessary to establish the commission of the offense on the identical date named in the information, but that a conviction may be had if it be shown that the crime was committed on any day not so remote that the statute of limitations would be a bar. Yeoman v. State, 21 Neb. 171, 31 N. W. 669;Palin v. State, 38 Neb. 862, 57 N. W. 743. The same doctrine obtains in all prosecutions where the time at which an offense was committed is not essential, and the crime of larceny is embraced within this class. In a prosecution like the one at bar a variance between the proofs and the averments in the information as to the time of the commission of the crime is immaterial, since the date the act was done is not a part of the description of the offense. It is only where time enters into the nature, or is made a part of the description, of an offense, that the information must specifically aver the date of the transaction charged; for section 412 of the Criminal Code declares that no indictment (information) shall be deemed invalid or defective “for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense; nor for stating the time imperfectly.” Under the foregoing section this information is sufficient notwithstanding it charges the crime as having occurred “on or about” a specific date. State v. Fry, 67 Iowa, 475, 25 N. W. 738;Chandler v. State (Fla.) 6 South. 768;State v. Howard (S. C.) 10 S. E. 831; Vowells v. Com., 84 Ky. 52; Pruitt v. State (Ark.) 11 S. W. 822;State v. Peters, 107 N. C. 876, 12 S. E. 74;Arrington v. Com. (Va.) 12 S. E. 224;State v. Thompson, 10 Mont. 549, 27 Pac. 349;State v. McCarthy (La.) 10 South. 673;U. S. v. Conrad, 59 Fed. 458;Fleming v. State (Ind. Sup.) 36 N. E. 154.
It is also insisted that the trial court erred in not quashing the information because it fails to charge that the property was taken with felonious intent to convert the same to the use of the defendant without the consent of the owner thereof. There is no force in the position. The averment in the information is that the defendant “unlawfully and feloniously did steal, take, and drive away” the cow in question. This is the usual form of the charge in an information for larceny, substantially follows the language of the statute, and discloses that the animal was stolen with felonious intent of the accused to permanently deprive the owner thereof without his consent. The decisions of this court cited on page 5 of the brief of the defendant are not in point here. They hold that any definition of larceny is faulty which omits to state the element of felonious intent. Such intent is specifically charged in this information. The foregoing disposes of the objection argued in the brief that the court erred in overruling the demurrer to the information, since it raised the same question as the one just considered.
Error is alleged in the overruling of the plea in abatement. It is argued that this plea should have been sustained because the transcript discloses that John H. Cannon, the justice of the peace before whom the complaint was made, and who issued the warrant in this case, was a justice of the peace in and for Lincoln county, and had no jurisdiction of the offense. A sufficient answer to this contention is that the plea in abatement specifically avers that said Cannon was a justice of the peace in and for West Ogalla precinct, Keith county, where he resided, and the demurrer to the plea admitted the truth thereof. Moreover, the transcript, in at least three places, specifically states...
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