State v. Buttner

• Decision Date: 08 July 1966
• Docket Number: No. 36209,36209
• Citation: 180 Neb. 529,143 N.W.2d 907
• Parties: STATE of Nebraska, Appellant, v. Carville R. (Barney) BUTTNER, Appellee.
• Court: Nebraska Supreme Court

Page 907

143 N.W.2d 907

180 Neb. 529

STATE of Nebraska, Appellant, v. Carville R. (Barney) BUTTNER, Appellee.

No. 36209.

Supreme Court of Nebraska.

July 8, 1966.

Syllabus by the Court

1. A primary rule of construction is that the intention of the Legislature is to be found in the ordinary meaning of the words of a statute in the connection in which they are used and in the light of the mischief to be remedied. While there is a rule requiring the strict construction of a penal statute that rule is not violated by giving to the words their full meaning in the connection in which they are employed.

2. A member of a planning board of the metropolitan city of Omaha is a ministerial officer within the meaning of section 28--706, R.R.S.1943, and a conviction of a member thereof may be had for the violation of that statute.

3. In this state all public offenses are statutory; no act is criminal unless the Legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.

4. In all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation.

5. Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him in order that he may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.

6. An information or indictment must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense.

Donald L. Knowles, County Atty., Arthur D. O'Leary, Chief Deputy Co. Atty., Thomas F. Ryder, James M. Murphy, Omaha, for appellant.

Alfred A. Fiedler, Omaha, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and BURKE, District Judge.

BROWER, Justice.

On December 16, 1964, a grand jury which had been convened in Douglas County Nebraska, returned an indictment endorsed as 'a true bill' containing four counts against the defendant Carville R. (Barney) Buttner.

The defendant filed a demurrer to the several counts pursuant to section 29--1810, R.R.S.1943. The trial court sustained the demurrer as to all counts of the indictment and dismissed them.

Thereafter the county attorney timely presented his exceptions by application first to the trial court and thereafter to this court. We thereupon granted leave to docket this proceeding to obtain a review of the case as provided by sections 29--2315.01 to 29--2316, R.R.S.1943.

We here set out the several counts of the indictment, the first being copied in full, followed by the substance of the respective charges in the last three, omitting the allegations concerning the grand jury and the residence and presence of the defendant in Douglas County at the time of the alleged offenses. Count I: 'The Grand Jurors, duly impaneled, sworn, and charged to inquire of offenses committed within the said County of Douglas, in the name and by the authority of the State of Nebraska, on their oaths do present and find that CARVILLE R. (BARNEY) BUTTNER late of the County of Douglas aforesaid, from the 3rd day of June in the year of our Lord one thousand nine hundred and sixty-four to the 25th day of September, 1964, in the County of Douglas aforesaid, then and there being in said County and State, did conspire with STEVE NOVAK, ERNEST A. ADAMS, and RONALD J. ABBOUD to commit a felony, to-wit: accepting a bribe by a city councilman, contrary to Section 28--706 of the Revised Statutes of Nebraska for 1943; that pursuant to said conspiracy and for the purpose of effecting the object of said conspiracy, the said CARVILLE R. (BARNEY) BUTTNER, in the City of Omaha, in said county and state, did meet with John B. Coleman, on August 13, 1964, and did on that date solicit bribes from the said John B. Coleman;

'COUNT II * * * that CARVILLE R. (BARNEY) BUTTNER, * * * on or about July 23, 24, 25, 26, 1964 * * * being then and there a ministerial officer, to-wit: a member of the Planning Board of the City of Omaha, Nebraska, did receive a valuable consideration from John B. Coleman, to-wit: payment of expenses for a trip to Houston, Texas, and return to Omaha via Kansas City, Missouri, with the intent of him, the said CARVILLE R. (BARNEY) BUTTNER, to execute a power in him vested with partiality or favor in voting on legislative rezoning on an application of the said John B. Coleman;

'COUNT II * * * that CARVILLE R. (BARNEY) BUTTNER, * * * from on or about the 15th day of July, 1964, to the 28th day of September, 1964, * * * then and there being a member of the Planning Board of the City of Omaha, Nebraska, did unlawfully solicit, propose, or agree to receive a bribe, to-wit: expenses for a trip to Houston, Texas, and return to Omaha, Nebraska via Kansas City, Missouri.

'COUNT IV * * * that CARVILLE R. (BARNEY) BUTTNER, * * * from on or about August 3, 1964 to August 13, 1964, * * * then and there aiding and abetting city councilmen of the City of Omaha, Nebraska, did unlawfully solicit, propose, or agree to receive a bribe, to-wit: the sum of $15,000.00 from John B. Coleman, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Nebraska.'

The grounds of the demurrer to counts I, II, and III of the indictment were: '1. That they fail to state facts sufficient to constitute an offense contrary to the Statutes of the State.

'2. That they fail to state facts sufficient to appraise the Defendant of the crime of which he is being accused.

'3. That the Defendant is not one of the persons defined by Section 28--706, R.R.S Nebraska as set forth in Count I, II, and III of the indictment.' The demurrer with respect to Count IV includes the same grounds as stated in 1 and 2 of the demurrer to the previous counts and adds number 3 as follows: '3. That this Count fails to name the specific 'City Councilmen' to whom this Defendant allegedly aided and abetted.'

With respect to counts I and II, the trial court held they did not allege facts showing a violation of section 28--706, R.R.S.1943; with respect to count III it did not allege the identity of the person solicited, proposed to, or agreed with; and with respect to count IV it did not allege the identity of the councilmen aided or abetted.

The provisions of section 28--706, R.R.S.1943, are here set out: 'Whoever, directly or indirectly, gives any sum or sums of money or any other bribe, present or reward or any promise, contract, obligation or security for the payment of any money, present or reward or any other thing, To any judge, justice of the peace, sheriff, coroner, clerk, constable, jailer, county attorney, member of the legislative assembly or other officer, ministerial or judicial, except such fees as are allowed by law, With intent to induce or influence such officer to appoint or vote for any person for office, or to execute any of the powers in him vested, or perform any duty of him required, with partiality or favor, or otherwise than is required by law, or in consideration that such officer has appointed or voted for any person for any office, or exercised any power in him vested, Or performed any duty of him required, with partiality or favor, or otherwise, contrary to law, the person so giving, and the officer so receiving, any money, bribe, present, reward, promise, contract, obligation or security, With intent or for the purpose or consideration aforesaid, shall be deemed guilty of bribery, and shall be punished by confinement in the Nebraska Penal and Correctional Complex not less than one year nor more than five years.' (Italics supplied.)

In its journal sustaining the demurrer to counts I and II, the trial court makes clear that its reason for holding the counts did not allege facts showing a violation of this section was that the defendant was not one of those officers mentioned in the section and prohibited by it from receiving the bribes, presents, or rewards therein mentioned and particularly that he was not a ministerial officer. The State assigns error to this ruling and contends a member of the planning board of the city of Omaha is a 'ministerial' officer as set out in that section.

Inasmuch as this aspect of the case vitally affects the first two counts and the briefs of the parties consider this question at great length, we will discuss this matter first.

We are cited to the case of State v. Loechner, 65 Neb. 814, 91 N.W. 874, 59 L.R.A. 915, a case involving an indictment against a member of a board of education for malfeasance in office where this court had under consideration a statute providing: "Any clerk, sheriff, coroner, constable, county commissioner, justice of the peace, recorder, county surveyor, prosecuting or district attorney, or any ministerial officer who shall be guilty of any palpable omission of duty or who shall willfully or corruptly be guilty of malfeasance or partiality in the discharge of his official duties shall be fined,' etc.' In the cited case this court held that a member of the board of education was a ministerial officer within the meaning of that statute. The question was discussed at considerable length in the opinion. Many authorities and cases there cited and evaluated are similar to those presented here. We deem it unnecessary to discuss them again but will quote certain conclusions of the court in that opinion. 'Members of a board of education in cities and towns, like school district officers, are undoubtedly public officers, and must come within some of the recognized definitions of the different classes in which such officers are usually divided. In a general way it may be said that the affairs of state government and the method of administering its laws are...