State v. Heldenbrand

• Decision Date: 19 June 1901
• Citation: 87 N.W. 25,62 Neb. 136
• Parties: STATE v. HELDENBRAND.
• Court: Nebraska Supreme Court

62 Neb. 136

87 N.W. 25

STATE

v.HELDENBRAND.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. Section 9, c. 12, Comp. St., is not violative of section 3 of article 1 of the constitution, which decrees that “no person shall be deprived of life, liberty or property without due process of law.”

2. Prior to the adoption of the constitution, no person had the inherent right to establish his defense in every instance by oral evidence.

3. There is no vested right in any rule of the common law.

4. The legislature may change the rules of evidence.

5. A statute will not be declared void as against public policy, since such statute, when duly enacted, is the expressed public policy of the state upon that subject.

6. The constitution does not prohibit the legislature from adopting comprehensive titles to bills.

7. A law will not be declared unconstitutional merely because the title is broader than the body of the act.

8. The title of the act of the legislature of 1877 (Sess. Laws 1877, p. 5) “to prevent the fraudulent transfer of personal property” with sufficient clearness indicates the subject of the proposed legislation.

Error to district court, Dawson county; Sullivan, Judge.

Jess B. Heldenbrand was charged with selling mortgaged property, and brings error. Prosecution dismissed, and the state brings error. Exceptions sustained.W. A. Stewart and J. H. Van Dusen, for the State.

Geo. C. Gillan and E. A. Cook, for defendant in error.

NORVAL, C. J.

An information was filed in the court below charging one Jess B. Heldenbrand with violating section 6, c. 12, Comp. St., by selling mortgaged personal property without the written consent of the owner and holder of the debt secured by the mortgage. A demurrer to the information was interposed by defendant, which was sustained by the court, and the prosecution dismissed. The county attorney has brought the record here under the provisions of section 515 of the Criminal Code.

In 1877 the legislature passed an act “to prevent the fraudulent transfer of personal property.” Laws 1877, p. 5. This act made it a felony to sell, transfer, or dispose of personal property covered by a mortgage, during the existence of the lien or title created thereby, without the consent of the mortgagee. The legislature of 1889 amended this statute so as to read 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 in writing of the owner and holder of the debt secured by said mortgage, to any such sale, transfer, or disposal, shall be deemed guilty of a felony, and upon conviction thereof shall be fined in any sum not less than one hundred dollars, or imprisoned in the penitentiary for a term not less than one year nor more than ten years, or both fine and imprisonment at the discretion of the court.” Laws 1889, c. 35. This amendatory act is carried into the Compiled Statutes as section 9, c. 12. The district court held that this act, so far as it declared it a crime for the mortgagor to sell the mortgaged chattels “without the consent in writing” of the owner of the debt, was an attempt to deprive a person charged with violating the act of the right to adduce oral testimony in favor of his innocence, and for that reason was violative of section 3 of article 1 of the constitution of this state; further, that the act attempted to create a crime where no criminal intent exists, and is against public policy and void. There are other questions argued by counsel.

We think the first reason assigned not tenable. Section 3 of article 1 of the constitution reads as follows: “Sec. 3. No person shall be deprived of life, liberty or property without due process of law.” It is argued that as a person charged with this offense must, to establish his innocence, prove that he had the written consent of the owner of the debt,--and in such case the writing itself would be the best evidence,--he would be deprived of a constitutional right; it being assumed that at the time the constitution was adopted a person accused of crime had an inherent right in all instances to establish his defense by oral evidence. Had a person at such time such right? Manifestly not. A person charged with violating a law requiring a license must produce his license on trial, if charged with doing the business requiring a license, or account for his failure to produce it. One charged with forgery, if his defense consists of an admission that he affixed the signature which he is accused of falsifying, but the act was authorized by a written power of attorney, must produce the paper writing, or account for its absence. In many actions under the statutes of frauds or limitations, causes of actions or defenses must be supported by paper writings. Many other instances may be readily recalled by the curious wherein in both civil and criminal actions causes or defenses must be made out by writings. It cannot then be said that it was the intention of the constitution builders that in all cases, either civil or criminal, the defendant should have the right to offer oral evidence in his defense. The term “due process of law,” employed in that section of the constitution, cannot, then, be construed to imply an inherent right on the part of litigants to offer oral evidence in support of their causes of action or defenses. If this were not so, then, in the language of counsel representing the state, the following results would follow: “There could be no amendments to the law. The legislature could make no new laws,--especially those creating new and different offices. The legislature could not regulate or change the procedure in criminal cases; could not prescribe rules of evidence; in short, could do nothing except those things mentioned or granted by the constitution.” Manifestly, this cannot be the law. The constitution did not have the effect, on its adoption, to petrify the social structure. The purpose or intent of its adoption was not to preclude legislation, except in certain specified instances, where the power of the legislature for harm is expressly or impliedly restricted. It was not intended that the common law should thenceforth continue to the end of time, unaltered by legislative action. If such had been the intention, a...