62 Neb. 136 | Neb. | 1901
An information was filed in the court below charging one Jess B. Heldenbrand with violating section 9, chapter 12, Compiled Statutes, by selling mortgaged personal property without the written consent of the owner and holder of the debt secured by the mortgage. A demurrer to the information was interposed by defendant, which was sustained by the court, and the prosecution dismissed. The county attorney has brought the record here under the provisions of section 515 of the Criminal Code.
In 1877 the legislature passed an act “To prevent the fraudulent transfer of personal property.” Session Laws,
We think the first reason assigned not tenable. Section 3, article 1,. of the constitution reads as follows: “No person shall be deprived of life, liberty or property, without due process of law.” It is argued that, as a "person charged with this offense must, to establish his innocence, prove that he had the written consent of the owner of the debt, — and in such case the writing itself would
The'law attacked prohibits a mortgagor from disposing of the mortgaged property without the consent in writing of the owner or holder of the debt. Such consent is essentially in the nature of a license. When granted, the mortgagor may lawfully do what without it is forbidden. Individuals are prohibited from disposing of certain articles of merchandise, unless authorized in writing by the proper authorities so to do. A person accused of violating a law requiring a license for the sale of his wares, establishes his innocence by producing the written consent of the proper officials. In the case at bar, the accused is prohibited from disposing of this property very much as are individuals prohibited from dealing
It is also urged that the law is against public policy, because it is not required to be proved or pleaded that the accused in such a case was actuated in disposing of the property by an intent to defraud the owner or holder of the debt. We shall not stop to inquire into the meaning of the term “public policy,” although we should go far to find better evidence of the public policy than acts of the legislative body. If it be true that moral turpitude must accompany an act in order to make it a crime, then a vast body of laws, those which are merely mala prohibita, not mala per se, must likewise be swept from the statute books. So long as there is no constitutional inhibition, the legislature may make any act a crime, whether moral crookedness be involved in such act or not. When defendant sold this property without the written consent of the owner of the debt, if he is guilty of such act, the intent to violate a law was present, quite as certainly as it would be had he merely shot a quail in the closed season. In neither of the acts would moral turpitude be involved, but in each a criminal act would be committed, for in doing the act is implied the intent to defy the “thou shalt not” of the legislature. State v. Hughes, 38 Nebr., 366. Whether or no this act was a wise
Again, it is urged that the law is unconstitutional, for the reason that the act of 1877 was not clearly expressed in its title, and that the present section, which is amendatory of that act, is not germane to the subject-matter of the original act. The title of the act of 1877 is “An act to prevent the fraudulent transfer of personal property.” The title of the act is extremely broad. Indeed, it is much more comprehensive than the act itself. The latter refers solely to transfers by mortgagors, whereas under the title all transfers of personal property, the effect of which would be to work a wrong or fraud upon some other party, might have been included. A law is not necessarily void because its title is comprehensive. Paxton v. Farmers Company, 45 Nebr., 884; State v. Bemis, 45 Nebr., 724; Van Horn v. State, 46 Nebr., 62. A title may be general, yet not necessarily void on that account. “An act to amend the Code of Civil Procedure” has been upheld by this court. Gatling v. Lane, 17 Nebr., 80. The mere fact, however, that the legislature chose a title much more comprehensive than the matter covered by the body of the act can not be objectionable. If the title were more narrow than the act, then complaint might well be made that the constitutional inhibition was invaded. The title in question is doubtless not so appropriate an one as might have been chosen, but we think it fairly indicates the scope and purpose of the act, and that a person reading it might expect legislation of this character in the body of the act. State v. Bemis, supra. The usual consequence of transfers of property covered by chattel mortgage is to work a wrong or fraud upon the person holding the mortgage, for, being of a movable nature, it is difficult to trace it from one person to another. A transfer of cattle by a mortgagor resident in Nebraska to a
Some other questions of law are argued in the able brief of defendant, which, in the interest of brevity, we do not deem it necessary to discuss at length. We have examined them with care, and are of opinion that they' are not well taken. The exceptions are sustained.
Exceptions sustained.