Union Pacific Railroad v. State

Barnes, J. The Union Pacific Railroad Company was convicted in the district court for Lancaster county of a violation of the provisions of section 7, art. IX, ch. 72, Comp. St. 1909, commonly called the “anti-pass law,” and was adjudged to pay a fine of $100 and the costs of prosecution. To reverse that judgment the defendant has brought the case here by a petition in error. Defendant’s first contention is that the district court erred in overruling its motion to require the state to elect upon which charge contained in the information it would proceed. In the charging part of the information it is stated that “the said Union Pacific Railroad Company did then and there unlawfully and purposely issue and give to one Francis A. Graham a free pass.” And it is therefore argued that the information charges two distinct and separate offenses. It is sufficient to say that the information contains but one count, which charges a single violation of the section of the statutes above mentioned; and it is therefore evident that the prosecutor availed himself of the rule that, where a statute makes punishable the doing of one thing or another, thus specifying a considerable number of things, then by proper and ordinary construction a person who in one transaction does all violates the statute but once and incurs only one penalty. It follows that “the indictment on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunc [549] tion ‘and’ where the statute has ‘for,’ and it will not be double,” or subject to an attack for duplicity. 1 Bishop, New Criminal Procedure (4th ed.) sec. 436. This rule is decisive of the question, and we are of opinion that the defendant’s motion was properly overruled. Defendant’s second contention is that the state produced no evidence in support of the charge that the offense was committed in Lancaster county; and it is urged that, for the failure of the prosecutor to prove the venue, the judgment of the district court should be reversed. It appears that the cause was tried on a stipulation of facts, and no oral evidence was produced by either party. An examination of the bill of exceptions discloses that the place where the pass in question was issued and delivered is nowhere mentioned in the stipulation, and that the state produced no direct evidence upon that question. It is contended, however, that the venue, like any other fact, may be established by the circumstances, or by circumstantial evidence. This rule is not questioned by the defendant, and therefore it remains for us to determine whether the facts and circumstances shown by the record are sufficient to establish by inference, or by legitimate presumptions, beyond a reasonable doubt, the fact that the crime was committed in Lancaster county. We find that Doctor Graham, to whom the annual pass in question was issued, is described in the stipulation as “Doctor F. A. Graham of Lincoln,” and it is stated in the contract, which is relied on as a defense, that he was appointed surgeon at Lincoln, Nebraska, for the Union Pacific hospital fund, and was to perform the duties of district surgeon for the Union Pacific hospital fund at Lincoln, Nebraska. The contract is signed by Doctor Graham as district surgeon, and from those facts alone we are asked to presume that the pass in question was issued and delivered to him in Lancaster county, Nebraska. To do this requires us to go a step further in the way of presumption than has been done in any adjudicated case to which our attention has been directed. On the other hand, [550] it appears by the contract and stipulation that for the years 1906 and 1907 the doctor had been acting under the contract, and had been supplied with an annual pass for each of those years, upon which he could travel free of charge over the defendant’s lines of railroad to and from any place in this state. Therefore, we may reasonably presume that he went to the city of Omaha, in Douglas county, the place where the defendant maintains its general offices and transacts all of its general business, to renew his contract and receive his annual pass. Again, it may be stated that it clearly appears from the record that the matter of venue was entirely overlooked by both the prosecutor and the trial court, for the instructions do not embrace that question in any form whatsoever. The court, in charging the jury as to the facts which the state was required to prove in order to authorize a conviction, failed to state that the prosecution must establish the fact that the transaction complained of took place in Lancaster county, Nebraska, as charged in the information. Considering the condition of the record upon that point, it seems reasonably certain that, if that question had been properly submitted to the jury, they would not have convicted the defendant. While, as above stated, the venue may be established by circumstantial evidence, still the circumstances must be such as to prove that fact beyond a reasonable doubt. We think the evidence was insufficient to meet that requirement, and therefore does not sustain the verdict. Other questions are discussed in the brief of counsel for the defendant which will not be considered at this time, but we may say in passing that we see no reason to depart from the rule announced in State v. Martyn, 82 Neb. 225. It may not be out of place to suggest that counsel are mistaken in their view that defendant was tried on a charge of violating the anti-pass law, and was found guilty of an unlawful discrimination, and it may also be said that the anti-discrimination act was referred to in State v. Martyn, supra, for the sole purpose of showing that the contract [551] which the defendant insists has been violated by the terms of the anti-pass law was abrogated by that act and must be declared void as against public policy. Therefore, it is no defense to the charge contained in the information. For the sole reason that the state faded to prove the venue in this case, the judg: amt of the district court is reversed and the cause is remanded for further proceedings. Reversed.