Opinion
DATE: October 3, 1979
SUBJECT: CRIMINAL LAW, CLASSIFICATION OF OFFENSES
REQUESTED BY: B. B. Bornhoft, Wayne County Attorney.
Under the new criminal code, section 28-519, R.S.Supp., 1978, classifies criminal mischief as a Class IV Felony if the pecuniary loss involved is over $300.00 or a Class II Misdemeanor if the pecuniary loss is in excess of $100.00. If the pecuniary loss is several thousand dollars is it a Class IV Felony or a Class II Misdemeanor?
Both.
There are a number of crimes which include lesser offenses and the finder of fact may determine whether or not the accused is guilty of the more serious offense, if that is the one charged, or a lesser included offense. If you charged a felony and the trier of fact believed that you had proven your case including proof that the loss was in excess of $300.00 it would be justified in bringing in a verdict of guilty of a Class IV Felony; however if the jury brought in a verdict of a Class II Misdemeanor, upon proper instructions of the court, it must not have believed that the pecuniary loss was in excess of $300.00. The verdict will be controlled in large part by the charge made by the county attorney and his ability to prove the amount of the pecuniary loss.
A comparable situation occurred in State v. Salanitro, 176 Neb. 393, 126 N.W.2d 164 (1964), in which the defendant was charged with kidnapping and alleged as error the fact that he had not been tried for the lesser offense of blackmail by extortion, intimidation, etc. To this the Supreme Court of Nebraska stated:
". . . While the State may have had a choice of charges, which we do not pass on herein, error cannot be predicated on the failure to charge a defendant with a crime more favorable to the defendant as to penalty than the one with which he is charged.
"As suggested in State v. Tatreau, supra, the crime of kidnapping in its very nature embraces other crimes than the one defined in the statute. The question involved herein is, does the evidence warrant conviction of the crime with which the defendant is charged, kidnapping, as defined in section 28-417, R.R.S. 1943? Our answer is that it does."
For the foregoing reasons, it is our opinion that either offense may be sustained when the value of the intentionally inflicted pecuniary loss is in excess of $300.00.