To what has been said by the chief justice, I desire to add:
1. The objection to the indictment that it does not state facts sufficient to constitute a public offense is not waived by a failure to make the point in the district court either by demurrer or upon motion in arrest of judgment. Such an objection may be taken for the first time in the appellate court. (State v. Mack, 20 Or. 234;Lemons v. State, 4 W. Va. 755;State v. Sims, 43 Tex. 521.)
2. The indictment follows the language of the statute of 1887, p. 81, and under that statute is certainly sufficient, as is abundantly shown by the preceding opinion. The only question then, is whether that is a valid and constitutional law. It is objected that it is not, because it is virtually an amendment of sections 4634, 4635, Gen. Stat., which under the constitution can only be amended by re-enacting them in full, and a number of Nebraska cases (Smails v. White,4 Neb. 357; Sovereign v. State, 7 Neb. 410;Stricklett v. State, 48 N. W. Rep. 820; andSmith v. State, 52 N. W. Rep. 572) are cited as supporting that view. It seems, however, that the courts of that state stand alone upon that question, and while their position may be the more correct viewed from a theoretical and philosophical standpoint, in my judgment the weight of authority and the more practical reason is with those that hold the general rule that the clause of the constitution under consideration does not apply unless the subsequent statute is, in terms as well as in effect, an amendment of the preceding statute. Speaking of the constitutional provision that an amended section of a statute must be re-enacted and published at length, Judge Cooley says: "It should be observed that statutes which amend others by implication are not within this provision; and it is not essential that they even refer to the acts or sections which by implication they amend." (Const. Lim. 182.) This statement is well supported by the adjudged cases of many states.
A statute is frequently so interwoven with others, and directly or indirectly modifies or amends so many others, and the rule contended for is itself so uncertain and indefinite, and in its nature incapable of reasonably fixed limits of application, that, as it seems to me, its adoption would lead to more uncertainty and confusion in the law than it would eliminate. *Page 433
Therefore, if we admit the position of counsel that the act of 1887 is an amendment of the previous statutes concerning embezzlement, it does not follow that the act is unconstitutional. I concur in the affirmance of the judgment, and of the order refusing a new trial.