Rema v. State

Decision Date06 October 1897
Docket Number9091
PartiesWARREN REMA v. STATE OF NEBRASKA
CourtNebraska Supreme Court

ERROR to the district court for Keith county. Tried below before GRIMES, J. Affirmed.

AFFIRMED.

A. F Parsons, for plaintiff in error:

The motion to quash the information should have been sustained for the reason that the alleged offense is not therein charged to have been committed on a day certain. (Mau-zau-mau-ne-kah v. United States, 1 Pin. [Wis.] 124.)

The plea in abatement should have been sustained because the transcript shows that the justice of the peace before whom the complaint was made, and who issued the warrant, was a justice of the peace in and for Lincoln county, and he was acting in Keith county. (Criminal Code, sec. 260; State v. Shropshire, 4 Neb. 413.)

The demurrer to the information should have been sustained for the reason that no felonious intent was alleged therein while proof of such intent was necessary to make out the offense charged. (Criminal Code, sec. 442; Thompson v. People, 4 Neb. 528; Mead v. State, 25 Neb. 447; Waidley v. State, 34 Neb. 251; Cobb v. State, 40 Neb. 545.)

Mere conversion is not larceny. (Turner v. O'Brien, 5 Neb. 542.)

In a prosecution for larceny, proof of the nonconsent of the owner, by the best evidence, is indispensable to a conviction. (Perry v. State, 44 Neb. 416; Bubster v. State, 33 Neb. 663.)

C. J. Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.

OPINION

The facts are stated in the opinion.

NORVAL, J.

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 and Stock Improvement Co. 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 twelve 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, 25 Fla. 728, 6 So. 768; State v. Howard, 32 S.C. 91, 10 S.E. 831; Vowells v. Commonwealth, 84 Ky. 52; Pruitt v. State, 11 S.W. 822; State v. Peters, 107 N.C. 876, 12 S.E. 74; Arrington v. Commonwealth, 87 Va. 96, 12 S.E. 224; State v. Thompson, 10 Mont. 549, 27 P. 349; State v. McCarthy, 44 La. Ann. 323, 10 So. 673; United States v. Conrad, 59 F. 458; Fleming v. State, 136 Ind. 149, 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 in 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 Ogallala 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 that said J. H. Cannon was a justice of the peace of Keith county, and the same is not disputed by any other portion of the record, when properly construed, although a statement found in the complaint itself is relied upon to establish, in opposition to the allegation in the plea in abatement, that Mr. Cannon was a justice of the peace in and for Lincoln county, and acted in Keith county. The complaint is in part as follows:

"Before John H. Cannon, a Justice of the Peace in and for Keith County.

"THE STATE OF NEBRASKA, COUNTY OF KEITH. SS.

"THE STATE OF NEBRASKA v. WARREN REMA. For cattle stealing.

"The complaint and information of Edward Richards, of Lincoln county, aforesaid, made in the state of Nebraska, before John H. Cannon, a justice of the peace within and for said county. * * *"

The words "of Lincoln county" are merely descriptive of the person who made the complaint, and should be treated as surplusage. It is very evident that the words "within and for said county," appearing in the body of the complaint, refer to the county mentioned in the caption and in the venue, namely, Keith county, in...

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  • Rema v. State
    • United States
    • Nebraska Supreme Court
    • October 6, 1897

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