Richards v. State

• Decision Date: 09 October 1902
• Citation: Richards v. State, 65 Neb. 808, 91 N.W. 878 (Neb. 1902)
• Parties: RICHARDS v. STATE.
• Court: Nebraska Supreme Court

65 Neb. 808

91 N.W. 878

RICHARDS

v.STATE.

Supreme Court of Nebraska.

Oct. 9, 1902.

Syllabus by the Court.

1. The word “feloniously” can serve no practical purpose in an information charging all the essential elements of a felony.

2. It was thought in ancient times to be a wholesome rule to require the pleader to show by the use of the word “feloniously,” as an appellative term, the grade of the offense charged, but the reason for the rule and the rule itself have ceased to exist.

3. An immaterial change in the title to a bill, whenever made, is without legal effect.

4. The words “original Code,” when used in the title to a bill providing for the amendment and repeal of a section of the general law relating to crimes, should be construed as referring to the Code of 1873, and not to the abrogated Code of 1866.

5. A defect or imperfection in the title of a legislative bill may be corrected by amendment at any time before the bill is put upon its passage. The constitution does not require that every bill shall be read at large on three different days in each house of the legislature under an exactly identical title.

6. The act of 1887 amending section 12 of the Criminal Code contained but one subject, and that subject was clearly expressed in the title.

7. The legislation embraced in the said act of 1887 was within the title to the act of 1873, providing for the establishment of a Criminal Code, and was germane to section 12 of the last-mentioned act.

8. The purpose of the legislature, by the act of 1887, aforesaid, to amend and repeal section 12 of the Criminal Code, is not rendered doubtful by the reference to section 11 in the repealing clause.

9. The act of 1895 amending section 12 of the Criminal Code was constitutionally adopted, and is a valid law.

10. Neither old age nor devotion to country in time of peril can be regarded as a complete disproof and refutation of the charge of rape.

11. Evidence examined, and held sufficient to sustain the verdict.

Error to district court, Lancaster county; Holmes, Judge.

P. Coursey Richards was convicted of statutory rape, and brings error. Affirmed.R. D. Stearns, L. W. Billingsley, R. J. Greene, and R. H. Hagelin, for plaintiff in error.

Frank N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

SULLIVAN, C. J.

On an information charging statutory rape the defendant, P. Coursey Richards, was tried, found guilty, and sentenced to imprisonment in the penitentiary for a period of 12 years.

One of the assignments of error upon which he relies for a reversal of the sentence is that the information is fatally defective, because it fails to allege that the act in question was feloniously done. In our opinion, the omission is not deadly. The facts pleaded show with clearness and legal precision the commission of a crime. They show that the defendant had sexual relations with his stepdaughter, he being at the time over, and she under, the age of 18 years. Nothing further was necessary to charge a violation of section 12 of the Criminal Code. The word “feloniously,” if it had been introduced into the information, could serve no practical purpose. Its use would, it is true, have the sanction of custom, but not of utility or positive law. It might, perhaps, indicate that the act was criminal, and that in England, by the common law, a forfeiture of lands and chattels would follow conviction; but the criminality of an act does not depend upon the pleader's characterization of it, and the office of indictment or information is not to instruct either the defendant or the court in the history of English jurisprudence. It was thought in ancient times to be a wholesome rule to require the pleader to show by the use of the word “feloniously,” as an appellative term, the grade of the offense charged in the indictment (1 Bish. Cr. Proc. 535); but that view is, we suppose, no longer entertained by any one. The reason for the rule does not seem at this day to have been sound, or even plausible; but, such as it was, it has ceased to exist, and in this state the rule itself has been swept away by section 412 of the Criminal Code, which declares that no indictment shall be deemed invalid “for want of the averment of any matter not necessary to be proved, nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” All the elements of the offense of which Richards was convicted having been alleged in the information, we are not able to see how he could have been prejudiced by the omission of the word “feloniously.” As supporting our conclusionupon this point, we refer to Wagner v. State, 43 Neb. 1, 61 N. W. 85;State v. Setter, 57 Conn. 466, 18 Atl. 782, 14 Am. St. Rep. 121;Mitchell v. State, 42 Ohio St. 386; 1 Bish. Cr. Proc. 535; Whart. Cr. Pl. & Prac. 260.

Another ground upon which defendant claims a reversal of the sentence is that the acts of 1887 and 1895 amending section 12 of the Criminal Code were not adopted in accordance with constitutional procedure, and are therefore void. The contention of counsel for Richards is that the bill for the amendatory act of 1887 was not read in the house of representatives on three different days with the identical title that it bore at the time of its introduction. It appears from the house journal that the bill in question--senate file No. 10--was first read on January 20th under the title “A bill for an act for the protection of girls under the age of fifteen years, and to amend section 12 of chapter 4 of the original Code, and repeal said original section.” On the following day it was, according to the journal, again read under the title “A bill for an act for the protection of girls under the age of fifteen years, and to amend section 12 of chapter 4 of the Criminal Code of the Compiled Statutes of Nebraska, and to repeal said original section.” This is the title which the bill bore during the whole of its subsequent history. The argument of defendant's counsel proceeds on the assumption (1) that the change in the title was a substantial one, and (2) that every bill must be read at large on three different days in each branch of the legislature under an exactly identical title. Both assumptions are unwarranted. The original Code referred to in the title to the bill as it was first read was the Code of 1873, and not the Code of 1866, which every one understood had been repealed. It is preposterous to suppose that the legislature was undertaking by the adoption of the bill known as “Senate File No. 10” to amend and repeal a notoriously nonexisting law. But if the house amended the title to senate file No. 10, or if it adopted an unauthorized alteration of the title, it did so in the exercise of an undoubted right. It has never been held by this court, nor, we believe, by any other, that it is not competent for the legislature to correct defects or imperfections in the title of a bill at any time before the bill is put upon its passage. The constitution requires that the subject of a bill shall be expressed in its title,...