State v. Levell, 36360
| Decision Date | 03 March 1967 |
| Docket Number | No. 36360,36360 |
| Parties | STATE of Nebraska, Appellee, v. Roger C. LEVELL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Ordinarily, if words used in a legislative act had, at the time used, received a settled construction, it is presumed that the Legislature adopted them in that sense.
2. In construing a statute, it is the duty of the court to discover, if possible, the legislative intent from the language of the act and give effect thereto.
3. In determining the meaning of a legislative act, resort may be had to the title.
4. While a penal statute must be expressed in clear language, it is not necessary that it be so written as to be beyond the mere possibility of more than one construction.
5. Rules of interpretation are resorted to for the purpose of resolving an ambiguity, not of creating it.
6. When language of a statute is unambiguous, there is no necessity for construction; courts have no jurisdiction to change the language of the statute.
7. An information charging an offense in substantially the words of the statute is generally sufficient.
8. The purpose of the constitutional provision requiring that no bill shall contain more than one subject and that the same shall be clearly expressed in the title is to prevent surreptitious legislation and to provide that notice of the subject matter of the proposed law, through the title to the bill, is given to members of the Legislature and the public.
William L. Walker, Lincoln, for appellant.
Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH said McCOWN, JJ., and POLLOCK, District Judge.
Some knives, missing from the vegetable preparation department of the kitchen at the Nebraska Penal and Correctional Complex, were found in a brine tank. An investigation by prison officials ensued. The defendant and several other inmates were interrogated by prison officials on Friday and Saturday, December 17 and 18, 1965. On Saturday, December 18, 1965, the defendant and inmates Sharp and Mason were ordered to be taken to the adjustment center pending completion of the investigation concerning the missing knives. The defendant denied having taken the knives or having knowledge of who did. On the way to the adjustment center, the three inmates were walking abreast ahead of three officers. Lieutenant Foster testified that he was immediately behind the defendant as the group proceeded down the sidewalk south of the administration building. When they reached a point on the sidewalk close to the commissary building, the State's testimony is to the effect that the defendant suddenly turned around and swung and hit Foster in the forehead. Foster was knocked down by the blow and his face bloodied. The defendant and several inmates testified that Foster struck Levell first. The State's testimony, including that of the officers, directly contradicted this.
Defendant was charged and convicted by a jury of a violation of subsection (2), section 28--411, R.S.Supp., 1965. He was sentenced to a period of 3 years in the Nebraska Penal and Correctional Complex, from which he appeals.
Defendant's basic contention, summarizing his assignments of error, is that the assault of a guard by an inmate does not fall under subsection (2), section 28--411, R.S.Supp., 1965. Section 28--411, R.R.S.1943, was amended by the 1965 Legislature by Laws 1965, c. 137, s. 1, p. 476, referred to herein as L.B. 698, and it reads in full as amended as follows: (Emphasis supplied.)
The substance of defendant's contention is that the word 'another' in subsection (2), means 'another inmate' and not 'another person.' We do not agree. L.B. 698 (now section 28--411, R.S.Supp., (1965), added subsection (2) to what was the basic law of assault and battery as contained in the prior section, section 28--411, R.R.S.1943. Both parties concede, and there can be no doubt, that the word 'another' in subsection (1) of this statute means 'another person.' We feel that it is clear that subsection (2) simply provides that whoever is an inmate in the Nebraska Penal and Correctional Complex and commits the same offense, shall be guilty of a felony. The language defining the essential nature of the crime 'unlawfully assaults or threatens another' is identical in subsections (1) and (2) of the statute. Subsection (2) simply provided that when a particular class of persons, namely inmates, committed the same offense, that it constituted a felony. The word 'another' as used in subsection (1) of the statute has long meant 'another person.' That being true, when the Legislature used the same word in subsection (2), it is presumed to have adopted the same meaning. Here applicable is the principle announced in Brasier v. City of Lincoln, 159 Neb. 12, 65 N.W.2d 213, in which the court stated: 'It has long been the rule that if the words used in a legislative act had, at the time used, received a settled construction, we must presume that the legislature adopted them in that sense.' It is also clear that a different meaning has not been expressed in the context of this statute. We hold that it has the same significance and meaning as employed in subsection (1) of the statute.
This interpretation is reinforced when we read the title of L.B. 698 which is as follows: 'An Act to amend section 28-411, Reissue Revised Statutes of Nebraska, 1943, relating to crimes and punishments; To provide when violation thereof shall be a felony; to provide a penalty; and to repeal the original section.' (Emphasis supplied.) It therefore appears that the stated purpose of the amendment was to provide under what circumstances a violation of subsection (1) would constitute a felony. Construing the language employed in the title to the act and the amendment, we can come to no other conclusion than that the word 'another' used in subsection (2) meant 'another person' and not 'another inmate.'
Defendant further argues that since the statute is susceptible to two different interpretations, it must fall under the rule of strict construction of a penal statute. We do not agree. While a penal statute must be expressed in clear language, it is not necessary that it be so written as to be beyond the mere possibility of more than one construction. 22 C.J.S. Criminal Law § 24(2)a, p. 72. The possible interpretation that defendant would have us accept would be out of harmony with the title to the act, its evident purpose and intent, and would further lead to an unreasonable and absurd conclusion. It would require us to hold that assaults by inmates on each other would be a felony whereas an assault by an inmate on a guard or other persons not inmates would be a misdemeanor. We do not believe that the Legislature in passing this statute intended to place a higher value on the safety of inmates than it places on the safety of guards or other persons who necessarily come into contact with inmates. Even assuming that there are two possible constructions of the statute, which is not true, a construction which is unreasonable or creates absurdities should not be adopted. The legislative intent is clearly discoverable from the language of the act and the title. It was simply to provide that when an assault was committed by an inmate against any other person the Legislature declared it to be a felony and provided an appropriate penalty. The following principles are applicable. In In re Guardianship of Kraft, 150 Neb. 171, 33 N.W.2d 534, the court stated: "In construing a statute, it is the duty of the court to discover, if possible, the legislative intent from the language of the act and give effect thereto." In Pierson v. Faulkner, 134 Neb. 865, 279 N.W. 813, it was said: 'When a statute is ambiguous or susceptible of two constructions, one of which creates absurdities, unreasonableness or unequal operation and the other of which avoids such a result, the latter should be adopted.'
Defendant cites the committee's statements before the Legislature and the floor debate in connection with the passage of L.B. 698. Defendant also cites several rules of statutory construction. The legislative history and the general rules of statutory construction may be resorted to in case of ambiguity or uncertainty. As we have seen however the statute here is clear and unambiguous and, as we view it, susceptible to only one interpretation; that is, that the word 'another' means 'another person.' The following is...
To continue reading
Request your trial
-
Davis v. State
...was used in the evidence at the trial. State v. Silvacarvalho, 180 Neb. 755, 145 N.W.2d 447, 449 (1966), followed in State v. Levell, 181 Neb. 401, 149 N.W.2d 46 (1967); State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967). See also to the same effect: Knowles v. State, 194 So.2d 562, (Ala.1......
-
State v. Simants
...language, it is not necessary that it be so written as to be beyond the mere possibility of more than one construction.' State v. Levell, 181 Neb. 401, 149 N.W.2d 46. 'In construing a statute, the court must look to the object to be accomplished, the evils and mischief sought to be remedied......
-
Norwest Bank Nebraska, N.A. v. W.R. Grace & Co.- Conn.
...the bill in detail and it is not necessary that the title inform the readers of the specific contents of the bill." State v. Levell, 181 Neb. 401, 149 N.W.2d 46, 51 (1967). Moreover, the purpose of a title is "to describe the subject, not to synopsize the contents or every conceivable conse......
-
State v. Blankenfeld
...the State when it charged Blankenfeld in this case. Courts have no jurisdiction to change the language of a statute. State v. Levell, 181 Neb. 401, 149 N.W.2d 46 (1967). It is a settled rule that the evidence in a criminal case must correspond with the allegations of the indictment (or info......
-
Neb. Const. art. III § III-14 Bills and Resolutions Read By Title; Printing; Vote For Final Passage; Bills to Contain One Subject; Amended Section to Be Set Forth; Signing of Bills
...penalty for assault upon guard by inmate of penal institution, the title of the act did not violate this section. State v. Lovell, 181 Neb. 401, 149 N.W.2d 46 Title to Industrial Development Act of 1961 was sufficient, and act was not broader than title. State ex rel. Meyer v. County of Lan......