State v. Abraham, 38406
| Decision Date | 09 March 1973 |
| Docket Number | No. 38406,38406 |
| Citation | 205 N.W.2d 342,189 Neb. 728 |
| Parties | STATE of Nebraska, Appellee, v. Sidney ABRAHAM and Fud Ferris, Jr., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An information charging an offense in substantially the words of the statute is generally sufficient.
2. All defects that may be excepted to by a motion to quash are taken to be waived by a defendant pleading the general issue.
3. An indictment or information alone need not be full protection against double jeopardy because a defendant may allege and prove facts outside the record in support of a plea of former adjudication.
4. In a prosecution for receiving stolen property, when facts known to a defendant were such that a man of the age, intelligence, and experience of the defendant would know the property to have been stolen, the trier of fact may properly find the defendant possessed guilty knowledge.
McGrath, North, Nelson, Shkolnick & Dwyer, Miller & Rowen, Arthur D. O'Leary, J. Thomas Rowen, J. Patrick Green, Omaha, for appellants.
Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The two defendants were charged under section 28--508, R.R.S.1943, with receiving stolen property with the intent to defraud the owner. The case was tried to the court sitting without a jury, and from a judgment of guilty and sentence thereon, the defendants appeal. We affirm the judgment and sentence of the district court.
The defendants' first contention on appeal is, in essence, that the descriptive allegations in the information of the character of the goods received are so general as not to charge the statutory offense with the requisite certainty. Because of this, they argue, the information was fatally defective and so their motion in arrest of judgment should have been sustained even though they had not attacked the information by demurrer or motion to quash prior to trial.
The information provides in part as follows: 'Sidney Abraham and Fud Ferris, Jr. * * * did * * * feloniously receive Goods of the value of over $100.00 that had been stolen, with the intent to defraud the owner thereof, the said Sidney Abraham and Fud Ferris, Jr. knowing the goods to have been stolen.' (Emphasis supplied.)
An information can be challenged by way of a motion in arrest of judgment if it fails to state facts sufficient to constitute an offense. § 29--2104, R.R.S.1943. However, the information in the instant case is phrased in substantially the identical language of the statute. The rule is that where, as here, the statute states the elements of the offense, it is sufficient if the information describes the offense in the language of the statute. State v. Levell, 181 Neb. 401, 149 N.W.2d 46; State v. Adams, 181 Neb. 75, 147 N.W.2d 144; Stage v. Jarrett, 177 Neb. 459, 129 N.W.2d 259.
Since the information here, although phrased in general language, is sufficient to state an offense, the defendants' challenge really goes only to the requisite certainty and particularity of the information for the preparation of their defense. It is not such a challenge as can be brought by way of motion in arrest of judgment. Instead, a motion to quash is the proper method of attack. § 29--1808, R.R.S.1943; Matters v. State, 120 Neb. 404, 232 N.W. 781. The defendants failed to avail themselves of this procedure and pleaded not guilty. All defects that may be excepted to by a motion to quash are taken to be waived by a defendant pleading the general issue. § 29--1812, R.R.S.1943; State v. Fiegl, 184 Neb. 704, 171 N.W.2d 643; Nelson v. State, 167 Neb. 575, 94 N.W.2d 1; Green v. State, 116 Neb. 635, 218 N.W. 432. We are aware that an information must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and be able to plead the judgment rendered thereon as a bar to later prosecution for the same offense. State v. Huffman, 181 Neb. 356, 148 N.W.2d 321; State v. Adams, Supra. However, if the information here was not sufficiently specific to satisfy the defendants, they were afforded a remedy by motion to quash. It must be presumed that they were aware of the nature and cause of the charges against them since they were willing to proceed to a defense on the general issue without further clarification of the charges being requested. As to whether this information was sufficient to enable the defendants to plead the judgment as a bar to any subsequent prosecution, we apply the rule of State v. Adams, Supra, which says: 'An indictment or information alone need not be full protection against double jeopardy because a defendant may allege and prove facts outside the record in support of a plea of former adjudication.' The defendants' assignment of error in the overruling of their motion in arrest of judgment is therefore without merit.
The defendants' remaining contentions are addressed to the sufficiency of the evidence to sustain their convictions. The defendants first assert that the evidence will not support beyond a reasonable doubt a finding that the meat the defendants possessed was stolen.
It was found at trial that a trailer was stolen from the storage lot of the Iowa Beef Processors' plant at Dakota City in the early morning of May 23, 1971. The trailer contained some 30,000 pounds of meat identified as 200 boxes of cluck tenders and 300 boxes of chuck rolls. On the late evening of May 27, or the early morning of May 28, 1971, the defendants were at the St. Christopher's Inn in Valentine, Nebraska, which is owned by the defendant Ferris. It is undisputed that, while there, the defendants consummated a purchase of some 15,000 pounds of chuck rolls and chuck tenders, which normally sells for around 65 cents per pound wholesale, for 45 cents per pound. The defendants claimed at trial that the meat was bought from a truck driver who said his refrigeration unit was malfunctioning and, being unable to find storage facilities for the...
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