State v. Pray

30 Nev. 206 | Nev. | 1908

By the Court,

Norcross, J.:

Appellants were convicted in the Second Judicial District Court, in and for Churchill County, of the crime of receiving stolen goods, and were each fined $1,000, with the proviso that in default of payment they be imprisoned at the rate of one day for each two dollars of said fine. From the judgment, and from an order denying their motion for a new trial, an appeal is taken.

The state has moved to dismiss the appeal of C. A. Pray upon the ground that he paid the fine imposed upon him, and having fully satisfied the judgment against him his right of appeal is lost. This motion is resisted by counsel for appellant Pray upon the ground that by payment of the fine imposed the defendant does not lose his right of appeal, and further that, when defendant Pray paid his fine, it was under such circumstances that he reserved such right. We will concede, for the purposes of this opinion, that the facts relative to the payment of this fine are substantially as set forth in a stipulation entered into between- counsel for appellant and the District Attorney of Churchill County and filed in the lower court four months after the appeal was taken.

Said stipulation reads as follows: "That the record on appeal shall and may show that whereas, the judgment of said court against each of said defendants was in the alternative, and provided for a fine of $1,000, and, in case said fine was not paid, for imprisonment in the state prison at Carson City, Nevada, and that, whereas, both of the defendants were confined in the Churchill County jail, at Fallon, Nevada, and neither of them could get out to arrange for counsel on their appeal and for bail,-C. A. Pray, one of the above-named defendants, paid his fine of $1,000 in gold coin to the clerk of said court, under protest, and only with the understanding and belief that the same might be held by the said clerk pending his appeal in said case, and that the payment of said fine, under such circumstances and understanding, would in no way cut off, or deprive him of, his full right of appeal to the supreme court, and of his right to have said sum of money, so paid to the clerk of said court, refunded or paid back to him in case the supreme court should decide that the Second Judicial District Court of the State of Nevada, in and for Churchill County, had no jurisdiction to try said ease, or for any other reason should dismiss the said defendants or order a new trial of said cause. That said records may also show the following facts, to wit: That the said defendant, C. A. Pray, not only paid his said fine, under protest, as above set forth, but that the said sum so paid is still held by the clerk of the court pending the outcome and final decision of his said appeal, and that the State of Nevada, so represented by said district attorney, is entirely willing for said defendant to have his full rights of appeal in said cause, and for the said money to be returned to him in case the appeal should be decided in his favor.”

It is not contended that the arrangements entered into between the clerk and defendant Pray were in pursuance of any order of the court or were authorized by law. Counsel for appellant admit that they were irregular. What was attempted to be accomplished, however, was not a mere irregularity; it was an attempt to contravene the plain provisions of the statute, and any such an agreement is void and cannot be countenanced. (State v. Murphy, 23 Nev. 403.) If appellant Pray desired to be released from imprisonment pending his appeal, the only course open to him was to apply to the court to be released on bail, as did his codefendant Langdon. Pray never did so apply, and is now enjoying liberty under the law for the sole reason that he has paid the fine imposed upon him. The mere willingness of the district attorney to allow defendant Pray his rights of appeal and the amount of his fine restored to him in case of reversal cannot confer such rights. Section 453 of the criminal practice act (Comp.. Laws, 4418) provides: "If the judgment be imprisonment, or a fine and imprisonment until it be satisfied, the defendant shall forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with.” Section 479 of the same act (Comp. Laws, 4444) provides: "No appeal from a judgment of conviction, unless it be one imposing a fine only, shall stay the execution of the judgment, but the defendant, if in custody, shall remain in custody to abide the judgment upon the appeal, unless admitted to bail, as prescribed in section five hundred and two.”

The clerk of the district court has no power to make disposition of a fine other than as the statute provides. The court had jurisdiction of the persons of the defendants and of the crime charged in the indictment, and the fine was regularly imposed. Neither the court nor counsel could adopt a course to liberate the defendant other than the statute prescribed. It is hardly to be concluded that the action taken by the clerk in this case was without knowledge that be was acting in violation of tbe law. The defendant, also, must have'known that he was released in contravention of the statute. Although defendant and his counsel have been aware that defendant was not entitled to liberty except upon the payment of his fine or upon giving bail, no attempt has ever been made to account for his liberty, except that he is in the-position of having paid his fine and discharged the judgment against him. Under the provisions of sections 666 and 667 of the criminal practice act (Comp. Laws, 4361-, 4362) it was the imperative duty of the clerk within thirty days after the receipt of the amount of the fine to pay the same over to the county treasurer. A heavy penalty is imposed for failure so to do. The full amount of all fines imposed and collected must be transmitted, by the county treasurer to the state treasurer (Comp. Laws, 1208,4645), when the same becomes a part of the state school fund, and may only be paid out upon the warrant of the state controller pursuant to law (Comp. Laws, 1987). When a fine is paid in pursuance of a judgment, the statute determines what disposition shall be made of it, and neither the trial court nor this court has power to alter such- disposition, and certainly ministerial officials could not. The 'judgment against appellant Pray must be treated as satisfied.

There is a conflict among authorities as to whether a voluntary satisfaction of a judgment waives the right of appeal. Counsel for the state have cited a number of decisions holding that it does. It is contended by appellant, however, that the weight of authority is the other way, and this view is taken in 2 Cyc. pp. 647-648, where numerous authorities are cited in the notes. We think it unnecessary to determine between these conflicting positions, for under the view we take this ease falls within that class of cases referred to in Cyc., supra: "Where an order appealed from is of such a nature that its execution has left nothing upon which a judgment of reversal can operate, the appeal will be dismissed, unless such right was specially reserved.” Conceding that in this case an attempt was made to reserve such right, we have already shown that such attempted reservation was by acts clearly void.

The Supreme Court of the United States in the case of Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293, said: "The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence” (Book Co. v. Kansas, 193 U. S. 49, 24 Sup. Ct. 394, 48 L. Ed. 613; School District v. San Diego County, 97 Cal. 438, 32 Pac. 517; Negley v. Short [City Ct. N. Y.] 7 N. Y. Supp. 674.)

Upon a reversal of this case, neither this court nor the trial court has power to direct that the fine paid by defendant Pray be restored to him. Had the clerk of the trial court performed his plain duty under the statute, the amount paid for the fine would long since have reached the state treasury. For this or the trial court to give defendant Pray relief from the fine and order it restored to him would be to give countenance to the illegal acts of the clerk and himself for which there is no warrant. The appeal of defendant Pray will be dismissed.

The appeal of the defendant Langdon is properly before us. But one question is presented. Appellants contend that, conceding that an offense was committed, the proofs show conclusively that it was committed at Goldfield in Esmeralda County; that, this being the fact, the district court in Churchill County had no jurisdiction to try defendant for the offense proven. There can be no question but the indictment charges the commission of an offense within the jurisdiction of the court which tried the cause. The indictment charges that defendants "on the eighteenth day of January, nineteen hundred and seven, * * * at the township oí Hot Springs, in tbe County of Churebill, * * * for their own gain, then and there did feloniously buy and receive four sacks of ore, of the value of three thousand dollars, from a certain person to the jurors unknown, of the goods and chattels of the Goldfield-Mohawk Mining Company, a corporation, well knowing that the person unknown to the grand jury had lately before feloniously stolen, taken and carried away the said four sacks of ore.” It is conceded that the proofs in this Case show that the ore in question was .purchased, paid for, and received, by the defendants at Goldfield in the County of Esmeralda. The proofs also show that after it was so purchased and received it was shipped by defendants from Goldfield to Hazen, within said Hot Springs Township, in Churchill County. It is not disputed by counsel for the state that the rule of the common law prevails in this state, and that such rule requires that an indictment be found in the county in which the crime has been committed. (Comp. Laws, 3095; 12 Cyc. 229; 22 Ency. PI. & Pr. 821; 1 Bishop, NewCrim. Procedure, 47-49.) The crime of larceny was an exception to this rule, and by statutory enactment the rule has been modified with reference to certain other specified crimes. For example, our statute provides that "when property feloniously taken in one county by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense shall be in either county.” (Comp. Laws, 4060.) "In the absence of a statute, the venue of the crime of receiving stolen goods is in the county in which they are received, and not in the county in which they are stolen, nor in a county into which they are subsequently taken. In some jurisdictions this rule is changed by statute.” (12 Cyc. 234.) Appellant was indicted under section 65 of our crimes and punishments act, which reads as follows: "Every person who, for his gain, or to prevent the owner from again possessing his property, shall buy or receive stolen goods, or anything the stealing of which is declared to be larceny, or property obtained by robbery, burglary, or embezzlement, knowing the same so to have been obtained, shall, upon conviction, be imprisoned in the state prison for a term not exceeding five years, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment; and every such person may be tried, convicted, and punished, as well before as after the trial of the principal. -No person convicted of the offense specified in this section shall be condemned to imprisonment in the state prison, unless the value of the thing bought or received shall amount to fifty dollars, but the same shall be punished as provided in cases of petit larceny!’ (Comp. Laws, 4719.)

. The only contention made by counsel- for the state supporting the conviction of appellant in Churchill County is based upon the provisions of section 85 of the criminal practice act, which reads as follows: " When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction shall be in either county.” (Comp.- Laws, 4055.) Counsel in their brief say: "Unless section 4055, supra, changes the rule as applied to section 4079, defining the crime of receiving stolen property, we concede that appellant’s contention is correct. What, then, are the essential elements of the offense of receiving stolen goods as defined by our statute? In answering this question, we must look to the language defining the crime. Our contention is that there are three material and essential elements constituting this offense, the absence of any one of which elements will defeat a charge of this character under the law: (a) A person charged must receive or buy the property; (6) he must know that the property was stolen; (c) the purpose or intent to prevent the owner from again possessing the property, or for the receiver’s own gain, must also exist.” Counsel correctly sets forth the essential elements of the crime in question, and it is conceded that the first two occurred at Goldfield, in Esmeralda County. If the third element, the intent, also existed at the time of the receiving, then all elements of the crime were present and the offense was complete in Esmeralda County.

The wrongful intent being a necessary ingredient of the crime charged, such intent must exist at the time of the buying or receiving of the stolen goods. "To constitute a crime the act must, except in the case of certain statutory crimes, be accompanied by a criminal intent, or by such negligence or indifference to duty or consequences as is regarded by the law as equivalent to a criminal intent, the maxim being, actus non facit reum, nisi mens sit rea— a crime is not committed if the mind of the person doing the act be innocent;’ (12 Cyc. 147; 1 Bishop’s New Crim. Law, 204-208; State v. Zichfeld, 23 Nev. 304-315, 62 Am. St. Rep. 800.) This rule of itself is, we think, decisive of this case. Counsel, however, argue that "the act of the defendants in carrying the property into Churchill County, and the effect of those acts, constituted the element of the intention to deprive the Goldfield-Mohawk Company of its property, and, such being the case, by the section referred to the jurisdiction of the offense was either in Churchill County or in Esmeralda County.” This argument is fallacious, for if there was no wrongful intent until the property was carried into Churchill County, then the act of receiving was not accompanied with the wrongful intent necessary to constitute the crime. If the unlawful intent existed, as it must have existed to constitute the offense, at the time the property was received at Goldfield, then the crime was complete in Esmeralda County. The very authority which counsel for the state cite announces the principle of law we have heretofore referred to, and is an authority, we think, against their position. We quote from the case the following: "There must be a concurrence, in point of time, of the act and intent, to constitute an offense. If the evil intent existed in the defendant’s mind, in Grant County, to receive the animal charged to have been stolen, there was no act coupled with such intent, and hence there was no completed crime committed in Grant County by the defendant.” (State v. Rider, 46 Kan. 332, 26 Pac. 745.)

There can be no question that the offense of receiving stolen goods is consummated when the goods are received with the unlawful intent specified in the statute. The sub- • sequent transporting of the received stolen goods into another county in order to reap the fruits of the crime is not an act consummating or necessary to consummate the crime. Such act is simply an evidentiary fact proving or tending to prove the existence of the unlawful intent at the time of the receiving. When the ore was received with the unlawful intent, the crime was complete and the venue fixed. The removing of the ore to Hazen for the purpose of selling it and receiving the money expected to be paid for it may properly be said to be an act in the consummation of the purpose for which the crime was committed, but it is not an act in the consummation of the crime itself, for every element of the crime existed before the removal of the ore . into Churchill County. In the position which the state has taken in this case, they have treated the manifestation of the unlawful intent as the intent itself.

Counsel say that, if section 4055 of the Compiled Laws "has no application to the offense charged in the case at bar, then it has no meaning whatever!’ This conclusion does not follow. Many illustrations of cases where this section of the statute would be applicable may be found in 12 Cyc., at pages 239 and 240. ' The proofs of crime shown by the record in this case relate to an offense committed in Esmeralda County, and there is no proof that the offense charged in the indictment was committed. Under the law as it now exists in this state, we are obliged to reverse the judgment and the order appealed from by the defendant Langdon.

For the reasons given, it is ordered that the appeal of C. A. Pray be dismissed; that the judgment of conviction against W. J. Langdon and the order denying his motion for a new trial be reversed, and the cause is remanded for a new trial or such other proceedings as may be in consonance with this opinion.