65 Neb. 808 | Neb. | 1902
On an information charging statutory rape, the defendant, P. Coursey Richards, was tried, found guilty and sentenced to imprisonment in the penitentiary for a period of twelve years.
One of the assignments of error upon which he relies for a reversal of the sentence is that the information is fatally defective because it fails to allege that the act in question was feloniously done. In our opinion the omission is not deadly. The facts pleaded show with clearness and legal precision the commission of a crime. They show that the defendant had sexual relations with his stepdaughter, he being at the time over, and she under, the age of 18 years. Nothing further was necessary to charge a violation of section 12 of- the Criminal Code. The word “feloniously,” if it had been introduced into the information, could serve no practical purpose. Its use would, it is true, have the sanction of custom, but not of utility or positive law. It might perhaps indicate that the act was criminal, and that in England, by the common law, a forfeiture of lands and chattels would follow conviction; but the criminality of an act does not depend upon the pleader’s characterization of it, and the office of indictment or information is not to instruct either the defendant or the court in the history of English jurisprudence. It was thought in ancient times to be a wholesome rule to require the pleader to show by the use of the word “feloniously,” as an appellative term, the grade of the offense charged in the indictment (1 Bishop, Criminal Procedure, 535), but that view is, we suppose, no
Another ground upon which defendant claims a reversal of the sentence is that the acts of 1887 and 1895 amending section 12 of the Criminal Code were not adopted in accordance with constitutional procedure, and are therefore void. The contention of counsel for Richards is that the bill for the amendatory act of 1887 was not read in the house of representatives on three different days with the identical title that it bore at the time of its introduction. It appears from the house journal that the bill in question, Senate Pile No. 10, was first read on January 20 under the title “A bill for an act for the protection of girls under the age of fifteen years, and to amend section 12 of chapter 4 of the original Code, and repeal said original section.” On the following day it was, according to the journal, again read under the title “A bill for an act for the protection of girls under the age of fifteen years, and to amend section 12 of chapter 4 of the Criminal Code of the Compiled Statutes of Nebraska, and to repeal said original section.” This is the title which the bill bore during the whole of its subsequent history. The argument of defendant’s counsel proceeds on the assumption (1) that the
A further argument against the validity of the act of 1887 is that it contained more than one subject, was broader than its title, not germane to the title of the original act, and in some of its provisions extremely uncertain. These objections may be briefly disposed of. The original act was entitled “An act to establish a Criminal Code.” Section 12 defined the crime of rape, and differed from the present law on that subject only with respect to the age limit. The act of 1873 was constitutionally adopted, and is, in its general scope and reach, a valid law. Whatever might have been originally made a part of that law may at any time be ingrafted upon it by legislation professing to be amendatory. Webster v. City of Hastings, 59 Nebr.,
The only question remaining for consideration is whether the jury were justified on the evidence in returning a verdict in favor of the state; and this question, after a very careful reading of the. bill of exceptions, we answer in the affirmative without doubt or hesitation. The defendant, as his counsel insistently point out, is old, and has rendered some service to the nation, but these facts do not conclusively rebut the persuasive proofs of guilt brought forward at the trial; they are not necessarily characteristic of innocence and virtue. Age does not al
The verdict is supported by sufficient evidence and the judgment should be, and is,
Affirmed.
Note. — Criminal Pleading. — Felonice.—In the ancient indictment, proditorie indicated treason, and felonice telony; and where neither word appeared the offense was a misdemeanor. Starkie, Criminal Pleading [2d ed.], 74, 75. Mr. Bishop says that reason jnst as much requires it in the statutory as in the common-law crime.
Contra: People v. Parsons, 6 Cal., 487 — reaffirmed with a protest by Murray, C. J., in People v. Olivera, 7 Cal., 403, 404; Tilly v. State, 21 Fla., 242 — adverb “burglariously” held unnecessary in charging burglary; Miller v. People, 2 Scam. [Ill.], 233, substantially reaffirmed in Quigley v. People, 2 Scam., 301 [These last two cases are under a statute abrogating the common-law rule]; Durand v. People, 47 Mich., 332; State v. Felch, 58 N. H., 1. In Tennessee the indictment without a feloniee is good by statute. — W. F. B.