State v. Eckstein

188 N.W.2d 440, 187 Neb. 167, 1971 Neb. LEXIS 576

• Court: Nebraska Supreme Court
• Decided: June 25, 1971
• Docket: No. 37854
• Status: Published

Opinions

Smith, J.

An information charging defendant Clarence Eckstein with larceny by bailee of an automobile did not allege the value of the automobile. Upon a plea of guilty Eckstein was sentenced to imprisonment from 3 to 5 years. He appeals. He asserts that the information omitted an essential allegation — specific value of the automobile.

The information charged a violation of section 28-540, R. R. S. 1943. The section concludes that an offender is deemed guilty of larceny in the same manner as if the original taking were felonious. Upon conviction he is to be punished accordingly.

Stealing of an automobile is a separate offense without regard to the amount of its value. It is punishable by imprisonment from 1 to 10 years. See § 28-522, R. R. S. 1943. Grand larceny is punishable by imprisonment from 1 to 7 years. See § 28-506, R. R. S. 1943. The court informed Eckstein the maximum penalty was imprisonment for 7 years.

An information alleging conduct prohibited generally by one statutory section and specifically by another section charges an offense under the specific section. See, Buthman v. State, 131 Neb. 385, 268 N. W. 99 (1936); Graham v. State, 123 Neb. 63, 241 N. W. 786 (1932); Hogoboom v. State, 120 Neb. 525, 234 N. W. 422, 79 A. L. R. 1171 (1931) (dictum); Halbert v. State, 116 Neb. 1, 215 N. W. 459 (1927); Gragg v. State, 112 Neb, 732, 201 N. W. 338 (1924); Mares v. State, 112 Neb. 619, 200 N. W. 448 (1924) (receipt of stolen automobile); Griffith v. State, 94 Neb. 55, 142 N. W. 790 (1913); Wallace v. State, 91 Neb. 158, 135 N. W. 549 (1912); cf. Kruger v. Brainard, 183 Neb. 455, 161 N. W. 2d 520 (1968); A. L. I. Proposed Official Draft, Model Penal Code, § 1.07(d) (1962).

In Lee v. State, 103 Neb. 87, 170 N. W. 359 (1919), the information charged Lee with larceny of an automobile worth $200, a sum large enough for grand larceny. The court, 3 judges dissenting, reversed his conviction for failure of the jury to find the value of the automobile. On the issue before us Lee illustrates asymmetry in the law. Although it harmonizes with some cases decided prior to 1912, Lee today is a wild recessive.

Specific value of the automobile was not an essential allegation against Eckstein. In so concluding, we are not construing the criminal code retroactively. See Bouie v. Columbia, 378 U. S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964).

The other assignments of error, one of which is invalidity of Eckstein’s plea, are not well taken. The judgment is affirmed.

Affirmed.