Stricklett v. State

• Decision Date: 05 May 1891
• Citation: Stricklett v. State, 31 Neb. 674, 48 N.W. 820 (Neb. 1891)
• Parties: LOUIS W. STRICKLETT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

48 N.W. 820

31 Neb. 674

LOUIS W. STRICKLETT v. STATE OF NEBRASKA

Supreme Court of Nebraska

May 5, 1891

ERROR to the district court for Washington county. Tried below before CLARKSON, J.

REVERSED AND REMANDED.

Jesse T. Davis, for plaintiff in error, cited: Tecumseh v Phillips, 5 Neb. 310; White v. Lincoln, Id., 505; Boggs v. Washington County, 10 Id., 300; State v. Pierce County, Id., 476; Ex parte Thomason 16 Id., 238; Holmberg v. Hauck, Id., 337; Messenger v. State, 25 Id., 674; State v Judge, 2 Iowa 282; Davis v. State, 7 Md. 151; Connor v. Mayor, 5 N.Y. 293; Sun Mut. L. Ins. Co. v. Mayor, 8 Id., 253; State v. Silver, 9 Nev. 227; Cooley, Const. Lim., 174-5.

William Leese, Attorney General, contra, cited: Maxwell, Crim. Pro., 79; Bishop, Statutory Crimes, sec. 363.

OPINION

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:

"Sec. 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 nor 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 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 All acts and parts of acts inconsistent with this act are hereby repealed."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 be amended.

Sec. 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.

"Sec. 15. If any person shall voluntarily, unlawfully, and on purpose cut or bite the nose, lip or lips, ear or ears, or cut out 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.

"Sec. 16. If any person shall maliciously shoot, stab, cut, or shoot at any other person, with intent to kill, wound, or main 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 appears is a valid act; in other words, it adds to the list of offenses and imposes punishment for the same, but does not change or affect the offenses designated in the Criminal Code. It is not an amendment, therefore, within the inhibition of the constitution.

The second section, however, is an evident attempt to amend section 14 above copied, and comes within the rule of Smails v. White, 4 Neb. 353, and Sovereign v. State, 7 Neb. 409, in which it was held that where an independent act was in fact amendatory of the provisions of the existing statutes, but failed to refer to such statutes so amended, it was in fact void, as being in conflict with the constitution.

The reason for the constitutional provision no doubt was the uncertainty which would exist as to the law upon any given point if statutes could be amended by the simple passage of acts like this, which in general terms sought to repeal all statutes in conflict therewith. In...