State v. Hards
| Decision Date | 11 March 1886 |
| Citation | 27 N.W. 139,19 Neb. 316 |
| Parties | THE STATE OF NEBRASKA v. NELSON D. HURDS |
| Court | Nebraska Supreme Court |
BILL OF EXCEPTIONS from Dodge county, POST, J., presiding; filed by the district attorney under the provisions of sec. 515 criminal code.
Demurrer overruled.
William Marshall, District Attorney, for the state.
F Dolezal, contra.
This is a proceeding in error by the district attorney of the fourth judicial district under the provisions of section 514 et seq., of the criminal code, for the purpose of having the law of the case determined by this court.
The defendant was indicted for selling mortgaged personal property, The charging part of the indictment, after reciting the execution of the mortgage, is, that the defendant "during the existence of the lien created by said mortgage, did unlawfully, fraudulently and feloniously, and without the consent of the said Seymour, Sabin & Co., the mortgagee, sell and transfer the said described personal property, to-wit, said gray horse, to George C. Land for the sum of $ 130.00." To this indictment the defendant demurred, his demurrer was sustained and the case dismissed.
The question presented by this record is, does this indictment charge the commission of a crime, there being no allegation that the sale of the mortgaged property was made with an intent to defraud.
Section nine of chapter twelve of the Complied Statutes, under which this indictment was drawn, is as follows: "That any person who, after having conveyed any article of personal property to another by mortgage, shall, during the existence of the lien or title created by such mortgage, sell, transfer, or in any manner dispose of the said personal property, or any part thereof so mortgaged, to any person or body corporate, without first procuring the consent of the mortgagee of the property to such sale, transfer, or disposal * * * * shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned in the penitentiary for a term not exceeding ten years and be fined in a sum not exceeding one thousand dollars."
It will be seen that the statute above quoted contains all the elements of the crime or act for the punishment of which it is sought to provide. The offense is purely statutory, having no relation to the common law. Like many other statutory crimes the criminality is made to consist in the acts themselves which are declared criminal, and not in the intent with which the criminal act is performed. It is quite probable, and we think the law is in this as in other cases, that the act must be accompanied by a criminal purpose or intent in order to render an accused liable to be punished for an infraction of the statute, but that is not the question here. The inquiry is, should this specific intent be alleged? It has been held in some cases and is, perhaps, the rule, that while the intent with which an act made criminal by statute is not directly mentioned in the act, as a necessary ingredient of the crime, yet by a fair construction of the language it is apparent that the intent or purpose was in its spirit, and a necessary part of it, such intent must be alleged. Such a case is Gabe v. The State, 1 Eng. 519 (Ark.) The statute made it criminal for any person to "fraudulently keep in possession or conceal any fictitious instrument, purporting to be a bank bill," etc. It was held that the essence of the offense consisted in keeping the fictitious instrument in possession with the intent to pass it as good, and therefore the intent should be alleged. A moment's study of the act would seem to satisfy the mind that such must be the case. No possible evil could result from the simple possession of such instrument. It would invade the rights of none. Therefore the purpose to use them "fraudulently" should be alleged. So again in Harrington v. The State, 54 Miss. 490. The statute made it a crime for "any clerk of any court, or public officer, or any other person," to "wittingly make any false entry, or erase any word, or letter, or change any record belonging to any court or public officer, whether in his keeping or not." The indictment charged that the defendant changed certain figures in a record book belonging to the records of the treasurer's office of Colfax county, being the numbers of certain registered warrants. It was held that the indictment should allege that the change was made for the purpose of injuring or benefiting some one. The spirit of the statute being shown by the provision in the same act, that in addition to the punishment for the crime the falsifier should be liable for all damages in an action brought by the party aggrieved. It was evident from the act itself that it was not the purpose of the legislature to punish a clerk or officer for the correction of a clerical mistake in the records as was the case there. In that case the court says: "Though as a general rule it is sufficient to charge a statutory offense in the words of the statute, yet this rule does not apply where there are in the language of the statute no sufficient words to define any offense." It is apparent that this exception has no application to the case at bar.
In Commonwealth v. Slack, 19 Pick. 304, the statute under which the defendant was indicted made it criminal for any person not authorized by the board of health to knowingly or willfully dig up, remove, or convey away, or to assist in digging up, removing, or conveying away any human body or the remains thereof. The indictment charged the defendant with unlawfully, feloniously, etc., removing and carrying away from the town of Westhampton the dead body of one Ibwok Miller, deceased, the defendant not being authorized by the board of health to do so, etc. The court held that the clear purpose and object of the statute was to protect dead bodies from violation for the purpose of dissection, and that it was necessary that the indictment should allege that purpose or intent on the part of the defendant.
The People v. Wilber, 4 Parker's Criminal Reports 19, is cited by defendant in error as holding that the intent to defraud should be specifically alleged, and such is the holding in that case. The act under which the defendant was indicted was for the protection of gas light companies, as expressed in the title. It was enacted "that any person who, with intent to injure or defraud any gas company * * * * shall make or cause to be made any pipe, tube, or other instrument, or contrivance, or connect the same, or cause it to be connected, with any main service pipe, or other pipe for conducting or supplying illuminating gas, in such manner as to connect with and be calculated to supply illuminating gas to any burner * * * * by which illuminating gas is consumed," without passing through a meter, etc., should be guilty of...
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