19 Neb. 316 | Neb. | 1886
This is a proceeding in error by the district attorney of the fourth judicial district under the provisions of section •514 et seq., of the criminal code, for the purpose of having the law of the case determined by this court.
The defendant was indicted for selling mortgaged personal property, The charging part of the indictment, after reciting the execution of the mortgage, is, that the defendant, “ during the existence of the lien created by said mortgage, did unlawfully, fraudulently and feloniously, and without the consent of the said Seymour, Sabin & Co., the mortgagee, sell and transfer the said described personal property, to-wit, said gray horse, to George C. Land for the sum of $130.00.” To this indictment the defendant demurred, his demurrer was sustained and the case dismissed.
Section nine of chapter twelve of the Compiled Statutes, under which this indictment was drawn, isas follows: “That any person who, after having conveyed any article of personal property to another by mortgage, shall, during the existence of the lien or title created by such mortgage, sell, transfer, or in any manner dispose of the said personal property, or any part thereof so mortgaged, to any person or body corporate, without first procuring the consent of the mortgagee of the property to such sale, transfer, or disposal * * * * shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned in the penitentiary for a term not exceeding ten years and be fined in a sum not exceeding one thousand dollars.”
It will be seen that the statute above quoted contains all the elements of the crime or act for the punishment of which it is sought to provide. The offense is purely statutory, having no relation to the common law. Like many other statutory crimes the criminality is made to consist in, the acts themselves which are declared criminal, and not in the intent with which the criminal act is performed. It is quite probable, and we think the law is in this as in other cases, that the act must be accompanied by a criminal purpose or intent in order to render an accused liable to be punished for an infraction of the statute, but that-is not the question here. The inquiry is, should this specific intent be alleged ? It has been held in some cases and is, perhaps, the rule, that while the intent with which an act made criminal by statute is not directly mentioned in the act, as a necessary ingredient of the crime, yet by a fair construction of the language it is apparent that the intent or purpose was in its spirit, and a necessary part of it, such intent must be alleged. Such a case is Gabe v.
In Commonwealth v. Slach, 19 Pick., 304, the statute
The People v. Wilber, 4 Parker’s Criminal Reports, 19, is cited by defendant in error as holding that the intent to defraud should be specifically alleged, and such is the holding in that case. The act under which the defendant was indicted was for the protection of gas light companies? as expressed in the title. It was enacted “ that any person who, with intent to injure or defraud any gas company * * * * shall make or cause to be made any pipe, tube, or other instrument, or contrivance, or connect the same, or cause it to be connected, with any main service pipe, or other pipe, for conducting or supplying illuminating gas,- in such manner as to connect with and be calculated to supply illuminating gas to any burner * * * * by which-illuminating gas is consumed,” without passing through a meter, etc., should be guilty of a misdemeanor. It will be observed that the “ intent to injure or defraud ” is made by the statute one of the essential elements of *the ■crime, and is used in the act as one of the criminal acts or conditions which ’must exist or the act will not be characterized as criminal. In such case the intent to defraud being made by the statute a part of the offense it should, by all rules of criminal pleading, be so alleged. But the
As we have seen, the act under consideration contains all the elements which the legislature saw fit to require should exist to constitute the crime. A mortgage must have been made conveying the property. The act which is declared to be criminal must occur during the existence of the lien or title created by the mortgage, then if under these conditions the mortgagor sells or transfers the property without the consent of the mortgagee (with the criminal mind), the crime is complete. The act must be accompanied by an intent to do wrong (1 Bishop Crim. Law, § 287), but it is not necessary to allege this intent.
In sec. 611,. vol. 1, Bishop’s Criminal Procedure, in discussing the subject of indictments under statutes defining the offense, it is said: “ To statutes of this sort the doctrines which require the indictment to set out the name of the defendant, the place, the time, the identifying particulars, and all other like things, apply precisely as to the common
The well-settled rule seems to be that if the offense consists in doing an unlawful or criminal act the evil intention will be presumed and need not be alleged. The intent is nothing more than the result which the law draws from the act, and 'requires no proof beyond that which the act itself implies. Com. v. Hersey, 2 Allen, 180, and cases there cited. To'this point also see Phillips v. The State, 17 Georgia, 461. In that case the provisions of the statutes were as follows: “Any person who shall draw or make a bill of exchange, due bill, or promissory note, or indorse or accept the same in a fictitious name, shall be guilty of forgery, and on conviction shall be punished,” etc. The court say: “ It is clear that under the law the offense is complete, provided it is made satisfactorily to appear, from the evidence, that the note was drawn and delivered in a fictitious name. Under the first section of this same head of the code the general offense of
It is insisted that the act of the legislature by which the section under consideration was passed is unconstitutional. This contention is founded upon the clause of the constitution of this state (art. 3, sec. 2), which provides that, “No bill shall contain more than one subject and the same shall be clearly expressed in its title.” It is said that the act contains two subjects, and the decision of this court in Ex parte Thomason, 16 Neb., 238, is cited to sustain this view. It is true a part of the act was held void as not within the title, but it does not therefore follow that the whole act was void. The question here presented was, we think, settled in The State v. Lancaster County, 17 Neb., 85. In that case the present Chief Justice, Maxwell, in writing the opinion of the court, said: “ The rule is well settled that where the title to an act actually indicates and the act itself actually includes two distinct objects where the constitution declares it shall embrace but one, the whole act must be treated as void from the manifest impossibility of choosing between the two and holding the act valid as to one and void as to the other,” citing Cooley’s Const. Lim., 147. “ But this rule,” he says, “ will apply only in those cases where it is impossible from the inspection of the act itself to determine which act, or rather
It follows that the demurrer should have been overruled.
JUDGMENT ACCORDINGLY.