State v. Arnold
Decision Date | 02 January 1891 |
Citation | 31 Neb. 75,47 N.W. 694 |
Parties | STATE v. ARNOLD. |
Court | Nebraska Supreme Court |
1. The act entitled “An act defining the crime of larceny from the person, and providing a penalty therefor,” approved March 14, 1887, was not, nor was it intended to be, an amendment of section 114 or section 119 of the Criminal Code, or of any statute then in force. Its purpose was to define a new crime, and provide a penalty therefor.
2. It is not inimical to the provisions of section 11 of article 3 of the constitution of this state.
Exception to district court, Douglas county; HOPEWELL, Judge.T. J. Mahoney, Co. Atty., for the State.
H. C. Brome, for defendant.
It appears from the record that at the May term of the district court sitting in and for the county of Douglas, in the year 1889, before the Honorable M. R. HOPEWELL, district judge, Timothy J. Mahoney, county attorney, presented and filed an information in due form, in which he gave the said court to know and be informed “that on the 27 day of May, in the year of our Lord one thousand eight hundred and eighty-nine, John Arnold, late of the county of Douglas aforesaid, in the county of Douglas, and state of Nebraska, aforesaid, then and there being, from the person of one William Bernard unlawfully and feloniously did steal, take, and carry away two dollars lawful money of the United States, of the value of two dollars, the property of William Bernard, without putting him, the said William Bernard, in fear by the use of threats, force, or violence, contrary to the form of the statute.” Whereupon the said John Arnold, being arrested and brought before the said court to answer the said charge and information, presented and filed therein a motion “that the said information be quashed; that the order theretofore issued by said court committing him, the said John Arnold, to the common jail of said county be vacated; and that said defendant be discharged from custody for the following reasons: (1) The said district court has no jurisdiction of said offense, and the said county attorney no authority to file an information against said defendant, for that the offense for which said defendant is held to await trial in said court is one respecting which a justice of the peace, or other magistrate within and for the county of Douglas, has full authority and power to hear and finally determine,”--which motion was by the said court allowed, the said information quashed, and the said defendant discharged, to which the said county attorney, on behalf of the state, duly excepted, and notified the said judge, in writing, of his intention to apply to the supreme court for permission to file a bill of exceptions in the said cause with the clerk thereof, for the decision of said court upon the points presented therein. And thereupon the said judge made an order in said cause appointing H. C. Brome, Esq., to argue the case in the supreme court in case the said application of the county attorney should be allowed, and which application was made in this court and allowed, and, upon argument by counsel and briefs filed, the cause was submitted to the court upon the following assignments of error: (1) The court erred in sustaining the motion of defendant to quash the information. (2) The court erred in discharging the said defendant from custody. (3) The court erred in not overruling the said motion to quash the information. (4) The court erred in entering judgment of dismissal in favor of the defendant. (5) Judgment ought to have been in favor of the plaintiff instead of the defendant.
In considering the two sides of the question of law upon which the case turns, we will examine that presented by Mr. Brome, on the part of the defendant in error, first. The motion to quash the information was decided by the district court upon the theory that the act upon which the information was presented was contrary to the provisions of section 11, art. 3, of the constitution. The said act was approved March 14, 1887. I here copy it at length: Section 11 of article 3 of the constitution contains the following provision: “And no law shall be amended unless the new act contains the section or sections amended, and the section or sections so amended shall be repealed.” The theory of the judgment of the court below is that the act of 1887, above quoted, was intended by the legislature as an amendment of section 114 of the Criminal Code, defining and fixing a penalty and punishment for grand larceny, or of section 119, which defines and prescribes a punishment for petit larceny, or of both of said sections. If this theory is correct, the conclusion reached by that court must also be admitted, as neither of the sections referred to are contained in the new act, nor repealed. But it is the contention of the plaintiff in error that it was not the intention of the legislature in the passage of the said act to amend either of the said sections of the Criminal Code; that it is an act complete in itself, and whatever effect or operation it has or may have upon the said sections of the Criminal Code, or any prior act or statute, is not within the mischief of the constitutional provision as stated in the opinion of the court in the case of Smails v. White, 4 Neb. 357. The case of Sovereign v. State, 7 Neb. 411, is cited by counsel for defendant in error as the case followed by the district court in the case at bar, and upon the principle of it must be sustained. The latter case arose under the act of the legislature approved February 19, 1877, the first section of which sought to provide “that from and after the first day of June, 1877, it shall be unlawful for any person to take, wound, or kill any wild bird within this state at any season of the year, or to take or destroy any wild birds'...
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