Korab v. State

93 Neb. 66 | Neb. | 1913

Rose, J.

In a prosecution by the state, William G. Korab, defendant, was convicted of receiving stolen property valued by the jury at $38, and for that offense was sentenced to serve in the penitentiary a term of not less than one nor more than seven years. As plaintiff in error he now seeks a reversal of his conviction.

The information ivas made by the county attorney of Boyd county, Nebraska, and charged: “William G. Korab, late of the county aforesaid, on the 14th day of March, A. D. 1912, in the county of Boyd and the state of Nebraska, aforesaid, unlawfully and feloniously did receive the personal property of John Lightfoot of the value of $48, then lately before stolen, taken and carried away, with the intent, of him, the said William G. Korab, to defraud said John Lightfoot, he then and there well knowing the said personal property to have been stolen.”

Defendant did not bring r-> a bill of exceptions. The only assignment of error available to him here is the overruling. of a motion in arrest of judgment. “That the facts stated in the indictment do not constitute an offense” is a statutory ground for sustaining such a motion. Criminal code, sec. 493. Were the facts stated sufficient to charge a felony? The inquiry is directed to the description of the property. It is described in the information as “the personal property of John Lightfoot of the value of $48, then lately before stolen.” The prosecutor intended to charge defendant with violating the following statutory provisions: “If any person shall receive or buy any goods or chattels of the value of thirty-five dollars or upwards, that shall be stolen or taken by robbers, with intent to defraud the owner, or shall harbor or conceal any robber or thief guilty of felony, knowing him or her to be such, every person so offending shall be imprisoned in the penitentiary no more than seven years, nor less than one year.” Criminal code, sec. 116.

An information for larceny may contain also a count for receiving the stolen property. Criminal code, sec. 419. Since both offenses may be charged in the same information, the rules for determining the sufficiency of the description in charging larceny apply substantially in a prosecution for the single offense of receiving stolen property. In this state the law has been stated thus: “In an indictment or information for larceny the property alleged to have been stolen should be described with sufficient particularity to enable the court to determine that such property is the subject of larceny; to advise the accused with reasonable certainty of the property meant, and enable him to make the needful preparations to meet such charge at the trial.” Barnes v. State, 40 Neb. 545. This is the general rule. An eminent text-writer says: “As in larceny, so in receiving, the transaction is identified by the description of the stolen things, and their ownership; namely, the thing stolen must be described in the same manner as in larceny.” 2 Bishop, New Criminal Procedure (4th ed.) sec. 982.

In the present case the description, “personal property of John .Lightfoot of the value of $48,” did not enable the court to determine that the property was the subject of larceny, nor advise defendant with reasonable certainty of the property meant, so as to enable him to make the needful preparation to meet the charge at the trial. The information, according to the correct rule and the one supported by the weight of authority, was insufficient to charge defendant with the felony denounced by the statute. Merwin v. People, 26 Mich. 298; State v. Kosky, 191 Mo. 1; Gabriel v. State, 44 Fla. 57; Brown v. State, 116 Ga. 559; Wells v. State, 90 Miss. 516. The facts stated in the information being insufficient to charge an offense, the motion in arrest of judgment should have been sustained. It necessarily follows that the sentence must be reversed and the cause remanded for further proceedings.

Reversed.

Letton, J., not sitting.