Smith v. State

• Decision Date: 18 May 1892
• Citation: 52 N.W. 572,34 Neb. 689
• Parties: BARNEY SMITH v. THE STATE OF NEBRASKA
• Court: Nebraska Supreme Court

52 N.W. 572

34 Neb. 689

BARNEY SMITH v. THE STATE OF NEBRASKA

Supreme Court of Nebraska

May 18, 1892

ERROR to the district court for Douglas county. Tried below before CLARKSON, J.

AFFIRMED.

Lee S Estelle, for plaintiff in error, cited: Ex parte Thompson, 16 Neb. 238; Boggs v. Washington Co., 10 Id., 297; Tecumseh v. Phillips, 5 Id., 305; White v Lincoln, 5 Id., 505; State, ex rel. Jones, v Lancaster Co., 6 Id., 474; State v. Barrett, 27 Kan. 215; State v. Young, 47 Ind. 150; State v. Baker, 50 Id., 506; State v. Sovereign, 7 Id., 412.

George H. Hastings, Attorney General, contra, cited: People v. McCallum, 1 Neb. 182; State v. Co. Judges, 2 Iowa 282; State v. Ream, 16 Neb. 681; White v. Lincoln, 5 Id., 505; Boggs v. Washington, Co., 10 Id., 297; Ives v. Norris, 13 Id., 252; Holmberg v. Hauck, 16 Id., 337; Cooley, Const. Lim., 170, 173, 220; State v. Arnold, 31 Neb. 76; Jones v. Davis, 6 Id., 33; State v. Page, 12 Id., 386; Smails v. White, 4 Id., 353; Att'y Gen'l v. Preston, 56 Mich. 177; Sears v. Cottrell, 5 Mich. 252; Green v. Graves, 1 Doug. [Mich.], 351; Bigelow v. R. Co., 27 Wis. 478.

OPINION

POST, J.

The only question involved in this case is the constitutionality of section 1 of the act approved March 30, 1889, entitled "An act to provide for the punishment of persons guilty of an assault upon another with intent to inflict great bodily injury, and for the punishment of persons guilty of an assault upon another with intent to kill the person so assaulted," sections 17b and 17c, Criminal Code. It is contended by plaintiff in error that the section in question is void for the reason that the act aforesaid contravenes the provision of section 11 of article 3 of the Constitution as follows: "And no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed." The claim of counsel is that the section under consideration is in effect an amendment of section 17 of the Criminal Code, which reads as follows: "Sec. 17. If any person shall unlawfully assault or threaten [another] in a menacing manner, or shall unlawfully strike or wound another, the person so offending shall, upon conviction thereof, be fined in any sum not exceeding one hundred dollars, or imprisoned in the jail of the county not exceeding three months, or both, in the discretion of the court, and shall, moreover, be liable to the suit of the party injured. "

Since the filing of the briefs in this case it was held in Stricklett v. State, 31 Neb. 674, 48 N.W. 820, that the second section of the act set out above is amendatory of section 14, Criminal Code, and, therefore, void under the rule in Smails v. White, 4 Neb. 353. It is further said by the present chief justice in that case, that the first section of the act provides punishment for an offense not mentioned by either of the sections named therein and therefor for a new offense. We have carefully re-examined the question and our investigation has resulted in the conclusion that the offense in question is a new and independent crime and that said section is not in any just or proper sense an amendment to the Criminal Code. Where the law forbids a defined combination of act and intent, and attaches a penalty for the violation of the inhibition, it establishes a distinct or specific crime. (1 Bishop's Crim. Law 599.) Again, section 776, the same author says, "When the law-making power draws its lines around a particular combination of act and intent and prohibits the thing under a penalty, it creates a specific crime." It was not the intention of constitutional prohibition against amendments without repealing the section amended, to prevent the amendment of the law upon any given subject by addition thereto of a new and independent provision. A simple assault and assault and battery, are under our Code misdemeanors, but an assault combined with an attempt to commit murder, rape, or robbery is an offense entirely different. An assault and battery is a misdemeanor without regard to the extent of the injury inflicted, or whether the intent was to inflict great or trifling injury. An assault with intent to inflict great bodily injury is therefore essentially...