Hardin v. State

138 N.W. 146, 92 Neb. 298, 1912 Neb. LEXIS 25

• Court: Nebraska Supreme Court
• Decided: November 1, 1912
• Docket: No. 17,564
• Status: Published

Opinions

Fawcett, J.

Defendant was convicted in the district court for Richardson county of the burglary of a railroad car in the yards of the Missouri Pacific Railway Company, in Falls City, and sentenced to a term in the penitentiary of not less than one nor more than ten years. From such conviction he prosecutes error to this court.

Plaintiff in error, who will be designated as defendant, in his brief presents and argues five specific grounds for reversal, which we will consider in the order in which they are presented. Upon the argument at the bar, counsel argued a further ground that the evidence was insufficient to sustain the verdict. This will also be considered in its order. The information charges that defendant “did, on or about the 30th day of July, A. D. 1911, in the county of Richardson and state of Nebraska, aforesaid, then and there being, then and there a railroad car of the Missouri Pacific Railway Company, a corporation duly organized under the laws of the state of Missouri, then and there being, wilfully, maliciously, forcibly, unlawfully, burglariously, and feloniously did break and enter, with intent the goods and chattels in said railroad car contained * * * to steal,” etc.

When arraigned, defendant first pleaded not guilty, but It'.ier was granted leave to withdraw this plea and file a plea in abatement, the only allegation in which was: “Because the statute under which said information is brought is invalid, in that it Avas not properly passed by the legislature which is purported to have enacted it.” This plea was overruled, and this ruling forms the basis of defendant’s first assignment, Adz., “Because there Avas no trial of the issue presented in the plea in abatement.” Under our holding in Stetter v. State, 77 Neb. 777, this assignment is without merit. We there held: “Where a plea in abatement in a criminal prosecution presents questions of law only, it is proper for the trial court to determine such questions without the intervention of a jury.”

“(2) Because the Daylight Burglary Act is unconstitutional, in that it is broader than its title.” The title to' the act (Senate File 150, laws 1905, ch. 184) reads: “An act to provide for the punishment of persons guilty of breaking and entering buildings of all characters, with intent to commit any felony, or with intent to steal property of any value, and to repeal sections 48 and 53 of the criminal code of Nebraska, except as to offenses heretofore committed thereunder.” Section 1 of the act proAddes: “If any person shall wilfully, maliciously and forcibly break and enter into any dwelling house, kitchen, smokehouse, * * * station-house or railroad car, with intent to * * * commit any felony, or with intent to steal property of any value, every person so offending shall be punished by imprisonment in the penitentiary,” etc. It is hoav contended that a railroad car is not within the title to the act for the reason that it is not a building; and numerous definitions are cited in support of this contention.

Is the statute under which the prosecution is brought invalid because in violation of the provision of section 11, art. III of the constitution, that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title?” The question is whether the subject of legislation is clearly expressed in the title. The subject is defined in the title of the act as “breaking and entering buildings of all characters,” with intent to commit felony or steal. Breaking and entering a railroad car is not a different subject for legislation from breaking and entering a warehouse or other permanent structure. If it were' a different subject of legislation, that of itself would prevent its being united with that subject in the same act, as no act can contain more than one subject. The subject of legislation is the breaking and entering, with intent to steal or commit felony. Is it clearly expressed in the title? The argument is that, because the title limits the subject of legislation to breaking and entering “buildings of all characters,” the breaking and entering of railroad cars is not included, and therefore the subject of legislation being extended in the act to cover the breaking and entering of railroad cars is not clearly expressed in the title. The title names the two former sections covering this subject and repeals them. In those sections the breaking and entering of a railroad car is included. It is manifest from the title of this act that the purpose was to enact a new law in place of the old, and to make the title general and broad. The words “of all characters” are added to the word “buildings.” These words would be wholly unnecessary if it was intended to legislate only in regard to structures of a permanent character. Any one considering this title would necessarily inquire as to the purpose and force of the added words, “of all characters.” The object of the constitutional provision in question is to prevent surreptitious legislation. It is intended to enable members of the legislature, and others interested, to know from the title of the act the subject of the proposed legislation. Those interested in defining the crime of breaking and entering, which was substituted for burglary of the common law, would understand that the legislation might be extended to- such constructions as were included in the former acts, and which, when we consider the derivation of the word “building,” are not necessarily excluded by the use of that term. The legislature considered this title sufficient to notify all parties of the subject of the proposed legislation. If we adhere to our rule that an act of the legislature will not be held invalid as violating the constitution unless it is clearly and unavoidably so, I think we must hold that the subject of this legislation is sufficiently expressed in the title.

“(3) Because the corpus delicti of the crime was not proven.” Defendant contends that there is no proof in the record showing that a crime was committed within the jurisdiction of the court; that is to say, that there is no proof that the car was broken into in Richardson county. The car was sealed in Kansas City, Missouri, which is about 100 miles distant from Falls City, only about four miles of that distance lying within Richardson county. Tt was sealed in Kansas City July 27, and reached Falls City on the evening of July 29 or the morning of July 30. The evidence of the state shows that, when the car was first observed by the agent of the railroad company, the seal was broken. Hence, it is contended that there is no evidence to show that the seal may not have been broken and the car entered before it reached Falls City. The trouble with this contention is the evidence shows that the only thing taken from the qar was one box of merchandise, which was found in the weeds close to the car, and the testimony of the witness Kendrick, who was a detective in the employ of the railroad company, shows that some time along in the night- following defendant’s preliminary examination defendant stated to him that “Sheldon (who was jointly informed against with defendant) broke the seal with a piece of iron, and Mr. Cantley (another detective in the employ of the-railway company) asked him if it was a brake shoe, and he said, 'I believe it was;’” that the witness then asked him, “What was you doing there?” and he said, “I was looking around to see if any one was coming;” that witness then said, “You were looking out, were you?” and he answered, “You can call it what you please.” This testimony by the witness Kendrick is assailed upon the ground that, at the time this admission is alleged to have been made, the circumstances under which defendant is alleged to have made the admissions were as follows: During tbe night following defendant’s preliminary hearing the two railroad detectives, Kendrick and Cantley, together with tire deputy sheriff and chief of police of Falls City, took defendant from the jail out into the alley between the jail and the courthouse, and there questioned defendant; that it was then that defendant is alleged to have made the admission above referred to. The testimony of Kendrick is contradicted by defendant, who testified that these parties tried to make him admit that he had assisted in breaking into the car in question; that the railroad detective had been drinking; that they had some hot words when he “denounced them as liars and perjurers;” and that the deputy sheriff then took him back to jail and locked him up. Counsel for defendant says: “Cantley is not called as a witness, and McFarland and Aldrich only corroborate Kendrick to a very slight degree.” Counsel in his brief claims that the defendant asked that his attorney be called in, but no attention was paid to it, and that the railroad detective began to threaten defendant and thereby obtained from him the admission above referred to. This claim of defendant’s counsel is not sustained by' the evidence, as given in the abstract prepared by him, beyond the single statement that the detectives and officers referred to “tried to make him admit that he had assisted in breaking into the car in question,” but no testimony is given as to any threats, nor are any facts given from which his conclusion is drawn, that they tried to make him admit his participation in the breaking. The jury saw the witnesses upon the stand and heard their testimony, and by their verdict have determined that the breaking occurred in Richardson county. The evidence of Kendrick, which, as counsel says, is corroborated “to a very slight degree” by the witnesses McFarland and Aldrich, would seem to be sufficient to sustain that finding.

“(4) Because the jury found Hardin guilty of burglary; there being no such offense in the Nebraska criminal code.” Counsel relies upon In re McVey, 50 Neb. , where it was held that, “under a.n information against a person for the crime of burglary, he cannot be convicted of the statutory offense of breaking and entering buildings in the day-time described in section 53 of the criminal code.” At the time the opinion in that case was handed down the crime of burglary was covered by section 48 of the criminal code, which limited the breaking and entering to “the night season,” and, in order to obtain a conviction under that section, it was necessary to show a breaking and entering in the night-time, while section 53 covered breaking and entering in the day-time, with intent to steal or commit felony, and the court held that, under an information based upon section 48, a party could not be convicted for the offense described in section 53. By the act of 1905, sections 48 and 53 were both repealed, and Senate File No. 150, supra, was substituted in lieu thereof; so that the act, as we now have it, covers the breaking and entering at any time whether day or night; the words, “in the night season,” having been omitted. The attempted distinction between the terms “burglary” and “breaking and entering” is, in our judgment, entirely too technical. As applied to our present criminal code, it is an attempted distinction without a difference.

“(5) Because the admissions of the defendant to the special agent of the railroad Avere obtained under threats.” This assignment is disposed of by our discussion of assignment No. 3.

This brings us to the contention made at the bar that the verdict is not sustained by the evidence. This contention must also be held adArersely to defendant. The evidence sIioavs without question that Sheldon entered the car in the afternoon, and threw the box of merchandise out into the weeds; that during the evening of that day he and Carlson and defendant went together to the place where this box had been thrown by Sheldon; that Sheldon then took some of the property out of the box and carried it aAvay. It is true all three of the witnesses say that defendant, took no part in rifling the box, and it is sought to show that defendant was induced to accompany Sheldon and Carlson to the yards that evening under an intimation that they had some liquor down there. It is also shown that friendly relations existed between defendant and Sheldon, so much so that, after Sheldon was arrested and locked up, defendant took some tobacco and cigarette papers to him; that while there he saw the chief of police, and asked if he could talk to Sheldon; that the chief of police asked him a few questions; that defendant told him where he worked, “and that he had come down with this fellow, meaning Sheldon, and was a friend of his.” There is also the testimony of the chief of police that on the evening of July 30 he was called to the Missouri Pacific depot, where he found a box car open and some goods scattered on the ground, including a pasteboard packing box; that he took possession of the box and contents and brought them to the courthouse, including the invoice for the goods, which he checked up and found that there were missing from the box a pair of shoes, a fountain pen, and a set of knives and forks; that he afterwards found the shoes in a room occupied by Sheldon; that some days afterwards he received from one Ridley a set of knives and forks; that on the way to the depot that evening he met Sheldon and Carlson between Seventh and Eighth streets as they were coming uptown, and west of Chase street he met defendant; that it was probably a half a block or more from the car to the point where he met defendant; that when he got to the car the door was open; that he gathered up the stuff, and was starting to get a lunch when he met defendant and two Mexicans; that he stopped them, told them he was a policeman, and that defendant was under arrest. He says: “I told him to come over to me, and he came over, and I saw a box in his pocket, a pasteboard box, about the length of the knives in question.” That he took the box out of defendant’s pocket and shook it, told him he was under arrest and for him to stand there; that he put the box back into defendant’s pocket, “and told him to line up with the others, three or four fellows and two Mexicans and the boys who had informed him of the car being opened. That as they lined up it was dark and they couldn’t see, and Mi*. Hardin (defendant) stepped back of him, and when he looked back he couldn’t see him, and that he looked over and saw him go at the south end of the coal shed. That was the last he saw of him that night.”

The evidence as to defendant’s participation in tin burglary of the car, outside of his alleged admission to the witness Kendrick, is not conclusive nor very satisfactory, but, when taken in connection with the admission testified to by Kendrick, corroborated to some extent at least, as conceded, by the witnesses McFarland and Aldrich, we think it was sufficient to sustain the verdict.

Upon consideration of the whole case, we feel that the defendant is probably guilty. The jury who heard the testimony and saw the witnesses have so found. The learned trial court, who also had the advantage of observation, which is denied to ns, sustained the verdict. Under these circumstances, the judgment of the district court must be, and it is,

Affirmed.