State v. Scott

• Decision Date: 03 April 1987
• Docket Number: No. 85-797,85-797
• Citation: 225 Neb. 146,403 N.W.2d 351
• Parties: STATE of Nebraska, Appellee, v. VerDon SCOTT, Appellant.
• Court: Nebraska Supreme Court

Page 351

403 N.W.2d 351

225 Neb. 146

STATE of Nebraska, Appellee, v. VerDon SCOTT, Appellant.

No. 85-797.

Supreme Court of Nebraska.

April 3, 1987.

Syllabus by the Court

1. Theft. Theft is a single offense.

2. Preliminary Hearings: Theft. A preliminary hearing on theft in one form is sufficient to bind a defendant over to the district court for trial on theft performed in a different manner.

3. Constitutional Law: Theft. Neb.Rev.Stat. § 28-512(2) (Reissue 1985) is constitutional.

4. Venue: Proof. Venue may be proved as any other fact.

5. Theft: Value of Goods: Proof. In a theft charge, the value of the thing involved is an element of the charge against defendant and must be proved by the State beyond a reasonable doubt.

6. Theft: Value of Goods: Juries. The value of the thing involved in a theft case must be established by the jury.

Frank Shoemaker, Cambridge, for appellant.

Robert M. Spire, Atty. Gen., and Dale D. Brodkey, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

GRANT, Justice.

Defendant-appellant, VerDon Scott, was charged by information in Hitchcock County, Nebraska, and convicted of two counts of theft in violation of Neb.Rev.Stat. § 28-512(2) (Reissue 1985). The violations alleged in the amended information were that defendant

on or about the 18th day of July, 1981 [November 15, 1981, in the second count], ... did ... obtain property of Rickel, Inc., a Kansas Corporation, by deception, to-wit: $1,236.70 [$1,141.88, in the second count], by intentionally preventing the said Rickel, Inc., from acquiring information regarding the transfer of grain in which Rickel, Inc., shared a pecuniary interest, thereby affecting its judgment of a transaction involving the performance of an agreement for the purchase and sale of a certain leasehold estate and grain facilities....

After jury trial, defendant was convicted of each count and sentenced to 3 years' probation with certain conditions, including 90 days' confinement in the Hitchcock County jail and "restitution of the fruits of his [defendant's] crime, which shall include thirty-seven and one-half percent (37 1/2%) of the fair market value of the grain involved in the two counts herein...." Defendant timely appealed to this court.

Defendant's assignments of error may be consolidated for the purpose of this opinion into four: (1) That the trial court erred in failing to hold that Neb.Rev.Stat. §§ 28-510 and 28-512 (Reissue 1985) are unconstitutionally vague; (2) That the court erred in failing to provide defendant a preliminary hearing on the amended charges on which he was tried (theft by deception), although affording defendant a preliminary hearing on the original charges against him (theft by taking); (3) That the trial court erred in failing to dismiss the case against defendant because the Statefailed to prove the venue of the crime; and (4) That the court erred in failing to properly instruct the jury. We reverse and remand for a new trial because of the court's instructions.

Defendant first contends that §§ 28-510 and 28-512 are unconstitutionally vague and that, therefore, defendant's conviction cannot stand. In State v. Sailors, 217 Neb. 693, 352 N.W.2d 860 (1984), we held § 28-512(1) to be constitutional, and much of the reasoning of that case can be applied to the consideration of the constitutionality of § 28-512(2). Section 28-510 states:

Conduct denominated theft in sections 28-509 to 28-518 constitutes a single offense embracing the separated offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under sections 28-509 to 28-518, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to insure fair trial by granting a continuance or other appropriate relief wherethe conduct of the defense would be prejudiced by lack of fair notice or by surprise.

Section 28-512 states in pertinent part:

A person commits theft if he obtains property of another by deception. A person deceives if he intentionally:

....

(2) Prevents another from acquiring information which would affect his judgment of a transaction....

Defendant specifically contends that §§ 28-510 and 28-512 are unconstitutionally vague and deprive the defendant of due process of law in violation of Neb. Const. art. I, § 3, which provides: "No person shall be deprived of life, liberty, or property, without due process of law."

Regarding § 28-510, defendant argues that the statute allows the county court to assume prosecutorial functions by allowing the court to determine at the preliminary hearing which of the five crimes consolidated in § 28-510 were committed by the defendant. Such a result, defendant argues, prevents the defendant from examining the State's witnesses as to essential elements of the crime for which he is charged because the defendant has no knowledge of the crime he is charged with until after the preliminary hearing.

The defendant's argument that § 28-510 is unconstitutional appears to be that he was not put on notice of which type of theft he was being charged with until after the preliminary hearing, that he was therefore deprived of the opportunity to cross-examine witnesses concerning the essential elements of the crime defendant was ultimately charged with, and that he was unable to prepare his defense. Defendant's attack is based on his allegation that in the criminal procedure used in his case he was not able to cross-examine the witnesses as to the specific charges against him. The alleged constitutional issue is based on lack of notice. With regard to § 28-510, that statute is the consolidation statute only. It does not set out the elements of any specific crime, but only groups conduct of a certain type in a single offense to be known as "theft."

Defendant's challenge to § 28-510 is directed to the conduct of the proceedings against him at the preliminary hearing level--not at the level of the proceedings in the district court. Section 28-510 provides that accusation of theft may be supported by evidence supporting any manner of theft, as described in Neb.Rev.Stat. §§ 28-509 to 28-518 (Reissue 1985), even though a different manner was specified in the indictment or information. We are not faced with the question of the effect of § 28-510 as it applies to proceedings in the district court, but only as to the sufficiency of the preliminary hearing afforded defendant in this case.

Neb.Rev.Stat. § 29-1607 (Reissue 1985) provides in part that "[n]o information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, unless such person shall waive his or her right to such examination...." In the case at bar, defendant contends he was afforded a preliminary hearing on the charges of theft by taking in violation of § 28-511, but not on the charges of theft by deception in violation of § 28-512(2).

The State's answer to this allegation is that under our criminal statutes in effect at the time of this incident "theft" is a single offense and that a preliminary hearing on theft in one form is sufficient to bind a defendant over to the district court for trial on theft performed in a different manner. We agree.

The function of a preliminary hearing is to determine if it appears a crime has been committed and that "there is probable cause to believe that the person charged has committed the offense." Neb.Rev.Stat. § 29-506 (Reissue 1985). The preliminary hearing is in no sense a trial as to the guilt or innocence of the person charged. Delay v. Brainard, 182 Neb. 509, 156 N.W.2d 14 (1968).

In the case before us, defendant argues only the lack of notice to him. Defendant was bound over for trial on theft by deception on September 12, 1984. Defendant's trial began on June 10, 1985. Defendant had notice of the specific charges on which he was tried. Section 28-510 is not unconstitutional as applied to defendant in this case.

The defendant argues that § 28-512 is unconstitutionally vague because it failed to give the defendant fair notice that his conduct was forbidden by the statute. Defendant claims that the statute failed to inform defendant that his conduct concerning the failure to record the two loads of grain sold for cash would be forbidden by the statute.

With regard to defendant's attack on the constitutionality of § 28-512(2), defendant contends that the statute is so vague that "it failed to give him fair notice that his contemplated conduct was forbidden by the Statute...." Brief for Appellant at 17-18.

We held in State v. Copple, 224 Neb. 672, 684, 401 N.W.2d 141, 151 (1987), quoting from State v. Neal, 187 Neb. 413, 191 N.W.2d 458 (1971):

"In order to meet constitutional standards of due process, a penal statute must be sufficiently clear so that a person of ordinary intelligence has fair notice of what exactly is forbidden conduct under the act.... [I]n construing a penal statute this court will give it an interpretation which meets constitutional requirements if it can reasonably be done.... A statute is presumed to be constitutional and unconstitutionality must be clearly established before this court is authorized to declare it void."

We further stated in Copple quoting from State v. Sailors, 217 Neb. 693, 352 N.W.2d 860 (1984):

The test for determining whether a statute is vague is whether it forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.... A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.... In determining...