State v. Wish
| Decision Date | 29 May 1884 |
| Citation | 19 N.W. 686,15 Neb. 448 |
| Parties | THE STATE OF NEBRASKA v. PETER WISH |
| Court | Nebraska Supreme Court |
BILL of exceptions from Antelope county on behalf of plaintiff filed under secs. 515, 516, criminal code.
Demurrer overruled.
E. M Coffin, district attorney, for the State.
D. A Holmes, contra.
At the April, 1883, term of the district court of Antelope county, the defendant was indicted for stealing a horse in that county on the twenty-seventh of March, 1883. On the thirteenth day of November, 1883, the defendant demurred to the indictment, upon the ground that the facts stated therein did not constitute an offense under the statute. The demurrer was sustained and the defendant discharged. The prosecuting attorney then applied for and obtained leave to file a petition in error in this court for the purpose of having the law determined. No objection is made to the form of the indictment, but it is claimed that the law for the punishment of horse stealing was repealed without a saving clause after the offense charged in the indictment was committed. The act to amend sec. 117 of the criminal code is as follows: "If any person shall steal any horse, mare, gelding, foal, or filly, ass or mule of any value; or if any person shall receive or buy any horse, mare, gelding, foal, or filly, ass or mule that shall have been stolen, knowing the same to have been stolen, with intent by such receiving or buying to defraud the owner; or if any person shall conceal any horse thief, knowing him to be such; or if any person shall conceal any horse, mare, or gelding, foal or filly, ass or mule, knowing the same to have been stolen; every person so offending shall be imprisoned in the penitentiary not more than ten years nor less than one year."
"Approved February 27th, 1883." Laws 1883, p. 333.
The only difference between the original section and the one as amended is, in reducing the maximum imprisonment from fifteen years to ten years and the minimum from three years to one year. In all other respects the language of the section as amended is verbatim that of the original. The repeal of the original section was made in conformity to the provisions of section 11, art. III. of the constitution, which provides that "no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed." The object of this provision was to give certainty to the law by removing all apparently conflicting provisions. And this was the only purpose, as those familiar with the history of the legislation of the state well know.
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