Stricklett v. State

• Decision Date: 05 May 1891
• Parties: STRICKLETT v. STATE.
• Court: Nebraska Supreme Court

31 Neb. 674

48 N.W. 820

STRICKLETT

v.STATE.

Supreme Court of Nebraska.

May 5, 1891.

Syllabus by the Court.

1. The second section of chapter 34 of the Session Laws of 1889 is clearly amendatory of section 14 of the Criminal Code, and comes within the rule of Smails v. White, 4 Neb. 353, and is void.

2. The first section of the same act provides for a new offense, and the punishment thereof, and is not an amendment, within the constitutional inhibition; in other words, it adds to the offenses designated in the Criminal Code, but does not seek to change or modify the provisions of such Code.

Error to district court, Washington county; CLARKSON, Judge.Jesse T. Davis, for plaintiff in error.

Wm. Leese, Atty. Gen., for the State.

MAXWELL, J.

The plaintiff in error was informed against under the second section of “An act to provide for the punishment of persons guilty of an assault upon another person with intent to inflict great bodily injury, and for the punishment of persons guilty of an assault upon another person with intent to kill the person assaulted,” approved March 30, 1889. The act is as follows: “Section 1. That if any person assault another with intent to inflict a great bodily injury he shall be punished, on conviction thereof, by imprisonment in the penitentiary for not less than one year, and for not more than five years. Sec. 2. If any person shall assault another with the intent to kill the person so assaulted, every person so offending shall be imprisoned in the penitentiary not less than one year, nor more than ten years. Sec. 3. All acts and parts of acts inconsistent with this act are hereby repealed.” On the trial of the cause, the plaintiff in error was convicted, and sentenced to imprisonment in the penitentiary for three years. He now assigns a number of errors in this court, and, among others, that the act is unconstitutional, because in fact amendatory of several sections of the Criminal Code without referring to such sections sought to amended. Section 14 of the Criminal Code provides: “If any person shall assault another with intent to commit a murder, rape, or robbery upon the person so assaulted, every person so offending shall be imprisoned in the penitentiary not more than fifteen nor less than two years.” Section 15: “If any person shall voluntarily, unlawfully, and on purpose cut or bite the nose, lip or lips, ear or ears, or cut or disable the tongue put out an eye, slit the nose, ear, or lip, cut or disable any limb or member of any person, with intent to murder, kill, maim, or disfigure such person, every person so offending shall be imprisoned in the penitentiary not more than twenty years, nor less than one year.” Section 16: “If any person shall maliciously shoot, stab, cut, or shoot at any other person with intent to kill, wound, or maim such person, every person so offending shall be imprisoned in the penitentiary not more than twenty years, nor less than one year.” It will be observed that the first section of the act of 1889 provides for an offense not mentioned in either of the sections named, and therefore creates punishment for a new offense. It was not an amendment, therefore, of either of the sections named, and so far as...