72 Neb. 361 | Neb. | 1904
An information was filed in the district court for Phelps county, against the plaintiff in error, by which it was attempted to charge him with a violation of the provisions of section 125 of the criminal code, by obtaining, through
“If any person by false pretense or pretenses, shall obtain from any other person, any money, goods, merchandise, or effects, whatsoever, with intent to cheat and defraud such person of the same, or shall fraudulently malee or transfer any bond, bill, deed of sale, gifts, grants, or other conveyances, to defeat his creditors of their just demands, such person so offending, shall be fined in any sum not exceeding five hundred dollars, or be imprisoned in the jail of the county, not exceeding ten days, or both, at the discretion of the court.”
Several ineffectual attempts were made to amend this law, and finally the legislature, at its session in 1899 (Laws 1899, ch. 104), passed an act by which the section was made to read as follows:
“If any person by false pretense or pretenses shall obtain from any other person, corporation, association or partnership, any money, goods, merchandise, credit or effects*363 Avhatsoever Avith intent to cheat or defraud such person, corporation, association or partnership of the same, or shall sell, lease or transfer any void or pretended patent right, or certificate of stock in a pretended corporation and take the promissory note or other valuable thing of such purchaser, or shall fraudulently make and transfer any bill, bond, deed of sale, benefit or g’rant or other conveyance to defraud his creditors of their just demands, or if he shall . obtain the signature or indorsement of any person to any J promissory note, bank draft, bill of exchange, or any other j instrument in Avriting, fraudulently or by misrepresenta- j tion, if the value of the property, or promissory note, or j Avritten instrument or credit, fraudulently obtained or conveyed as aforesaid, shall be thirty-five (35) dollars, or upwards, such person so offending shall be imprisoned in the penitentiary not more than five (5) years nor less than one (1) year; but if the value of the property be less than thirty-five (35) dollars, the person so offending shall be fined in any sum not exceeding one hundred (100) dollars, or be imprisoned in the jail of the county not exceeding thirty (30) days and be liable to the party injured in the amount of damages sustained.”
The information herein is founded on a violation of that part of the section inserted by the amendment, to wit:
“Or if he shall obtain the signature or indorsement of any person to any promissory note, bank draft, bill of exchange, or any other instrument in writing, fraudulently or by misrepresentation, if the value of the property, or promissory note, or written instrument or credit, fraudulently obtained or conveyed as aforesaid, shall be thirty-five (35) dollars or upAvards, such person so offending shall be imprisoned in the penitentiary not more than five (5) years nor less than one (1) year.”
And the. contention is that this provision is void, because it is not embraced in the title of the amendatory act, and is not germane to the subject of the section amended.
It is conceded that the title of the act of 1873, establishing a criminal code, was broad enough to embrace section
This brings us to the question as to whether the amendment is germane to the subject matter of the original section. It must be remembered that the subject of the section was fraud. By its enactment it was sought to prevent persons from obtaining money or property by means of fraud and false pretenses, and to prohibit persons from fraudulently disposing of, or conveying away their property for the purpose of defrauding their creditors. It has been amply demonstrated by experience, that the original section was not specific enough in its terms to embrace many of the transactions resorted to by dishonest and evilly disposed persons to fraudulently obtain the money, property and effects of their victims. And so, the legislature, to make the law more far-reaching and effective, adopted the amendment under consideration, which provides that to obtain, by means of fraud and false pretenses, the signature of a person to an instrument in writing by which property is conveyed to, or anything of value obtained by, the person perpetrating the fraud, is a violation of the act and punishable as therein provided. ' This provision is certainly germane to the subject of the original section; it is merely an amplification thereof.. It is conceded that the whole matter as it now appears in the section as amended might have been included in the original section, and would have been embraced in the title to the act in which the section in question is found. It seems clear that the matter contained in the amendment is simply a description of fraudulent acts or transactions not embraced in the original section, and of the same nature, and is germane to the subject thereof. In
The object of the original section was to prevent gambling. The title was held sufficient to authorize an amendment to the section giving the right to recover money or property lost in gambling, and that the amendment was germane to the subject of the original section. See also Henry v. Ward, 49 Neb. 392; Larned v. Tiernan, 110 Ill. 173; Fidelity Insurance, Trust & Safe Deposit Co. v. Shenandoah Valley R. Co., 86 Va. 1, 19 Am. St. Rep. 858, 872, and note; Bohel v. People, 173 Ill. 19, 64 Am. St. Rep. 96, and note. We therefore hold that section 125 of the criminal code, as amended, is valid, and is not in conflict with the provisions of section 11, article III of the constitution.
“Or any other instrument in writing, fraudulently or by misrepresentation, if the value of the property, or promissory note, or written instrument or credit, fraudulently obtained or conveyed as aforesaid, shall be thirty-five (35) dollars or upwards.”
The legislature must have intended to include deeds conveying real estate, and so understood the matter at the time the amendment was adopted. We therefore conclude that such deeds are fairly embraced by the language of section 125 in question.
Under this head, it was further contended that the accused was charged with the independent and distinct offense of selling and conveying land without a title; or in other words a violation of section 127 of the criminal code. It is a sufficient answer to this contention to say that he was charged with a violation of the provisions of section 125, and was tried for that offense, and no other. It further appears, from the evidence, that he did not convey the Indiana land to the prosecuting witness, for the deed therefor was executed by one C. N. Miller, and not by the accused. It thus appears that a prosecution under section 127 would have failed for want of evidence to sustain it. .
Some stress is placed on the fact that the land was re-conveyed to Krapf after the information was filed and the accused placed on his trial. It is clear, however, that a reconveyance of the land constituted no bar to the prosecution.
We find no reversible error in the record, and the judgment of the district court is therefore
Affirmed.