Peterson v. Tufts. annual refiling of such copy. It is evident that a conditional sale or transfer of personal property could not cease to be valid as to attaching creditors without notice unless such sale or transfer was once valid as against such creditors. It is not reasonable to suppose the legislature would have required, as it has done, that copies of conditional sale contracts be filed before the expiration of five years from their date, and annually thereafter, in order to preserve their validity as to attaching creditors, if such contracts were valid as to such creditors, in the first instance, without filing. The necessity is much greater for requiring copies of such contracts to be filed in the first instance in order to make such sales valid as to attaching creditors for the five years following the sale than after that period, for the reason that in most cases the conditions upon which the sales are made will have been fulfilled before the five years have elapsed, leaving but a small proportion of such contracts in force after that time to be affected by the section. If such contracts are valid without filing for five years as against attaching creditors, why should they, after that time, be annually refiled so as to preserve their validity as against such creditors? We think it was the policy of the legislature to place attaching creditors on an equality with creditors who have reduced their claims to judgments, so far as conditional sales of personal property are concerned, and that such intention is manifest from the language employed in the section quoted. We have examined the three authorities cited by the defendant in error. Daniel v. Sorrells et al., 9 Ala., 436, is based upon the statute of Alabama, relating to the registry of conveyances of real estate which declares that "all deeds recorded within six months from the date of their execuion, shall have force, and be valid and operative between the parties thereto and subsequent creditors and purchasers; and all deeds recorded after the expiration of six months shall be valid and operative from the date of their Peterson v. Tufts, registration, as to creditors and subsequent purchasers; Provided, The same shall be valid at all times between the contracting parties thereto." It was ruled that the section did not apply to creditors at large, but such as have obtained a lien by the recovery of a judgment. The statute of that state was subsequently changed by substituting the term judgment creditors for the word creditor. Under the section as thus changed the case of Tutwiler v. Montgomery, 73 Ala., 263, arose, in which it was held that the only class of creditors protected by the statute against unregistered conveyances of land, whether absolute or conditional, are judgment creditors. The case of Garwood v. Garwood, 4 Hal. [N. J. Eq.], 193, construes the statute of New Jersey, which declares that every deed or conveyance of or for any lands, tenements, or hereditaments to any purchaser of the same, shall be void and of no effect against a subsequent judgment creditor, or bona fide purchaser or mortgagee, for a valuable consideration, not having notice thereof, unless such deed or conveyance shall be acknowledged or proved and recorded, or lodged for that purpose within fifteen days after the time of signing, sealing, and delivering the same. It was held that when judgment is rendered on an attachment, and not earlier, the plaintiff acquires the character of a judgment creditor, and that the omission to record a deed within fifteen days after it is executed does not invalidate it, if recorded before judgment is rendered, although the land was previously attached. The statutes under which these cases were decided are materially different from our own. They do not include the term "attaching creditors" which appears in the section we have under consideration, and the authorities cited do not conflict with the construction we place upon our statute. As the evidence before the jury was conflicting as to whether McCague Bros. or their attorneys, prior to the levy of the attachments, were informed of the lien of Tufts 34 14 34 329 34 14 56 500 34 14 60 382 Weinecke v. State. upon the fountain, the court should not have directed a verdict, but should have submitted the disputed question of fact to the jury for their determination. If the attaching creditors or their attorneys had such notice, it is as effectual as the filing of the contract to render the sale and transfer valid. The judgment is reversed and the cause remanded for further proceedings. THE other judges concur. REVERSED AND REMANDEed. GUS. WEINECKE V. STATE OF NEBRASKA. [FILED FEBRUARY 17, 1892.] Held, 1. Criminal Law: OBSTRUCTIONS ON RAILROAD TRACK. 2. 3. 4. : CONVICTION ON ONE COUNT, ACQUITTAL ON ANOTHER. The information contains two counts, each charging a separate offense. There was a verdict of guilty under one count, and an acquittal of the other, though the evidence would have justified a conviction of both offenses charged. Held, That the findings are not inconsistent with each other, and that the accused was not prejudiced by the findings returned in his favor. : THE VENUE OF AN OFFENSE MAY BE PROVEN like any other fact in a criminal case. It need not be established by direct testimony, nor in the words of the information, but if from the facts in evidence the only rational conclusion which can be drawn is that the crime was committed in the county alleged, the proof is sufficient. 5. 6. Weinecke v. State. : VARIANCE. There is no variance between the allegations of the second count of the information and the evidence intro duced in support thereof. -: SENTENCE: REVIEW. When the sentence imposed in a criminal case is within the limits fixed by statute, it will not be disturbed, unless it appears that there has been an abuse of discretion. ERROR to the district court for Merrick county. Tried below before POST, J. A. Ewing, for plaintiff in error. Geo. H. Hastings, and W. T. Thompson, contra, cited: 1 Greenleaf, Ev., secs. 6, 217, 219; 1 Bishop, Crim. Proc., secs. 348, 48b; People v. Manning, 48 Cal., 335; Wharton, Crim. Ev. [9 Ed.], sec. 108; State v. Turner, 6 Bax. [Tenn.], 201; Casey v. State, 20 Neb., 159; 2 Thompson, Trials, sec. 2606. NORVAL, J. By The information upon which the plaintiff in error was tried contains two counts. In the first count the accused is charged with willfully and maliciously displacing and removing the spikes and bolts from one of the rails of the track of the main line of the Union Pacific railroad. the second count he is charged with willfully and maliciously placing an obstruction upon and across the track of said railroad. Upon the trial the plaintiff in error was acquitted upon the first count, and a verdict of guilty was returned upon the second count of the information. A motion for a new trial was filed, alleging the following grounds: "1. The verdict is not sustained by sufficient evidence. "2. The verdict is contrary to law. "3. Error of law occurring at the trial." The motion was denied, and thereupon the defendant Weinecke v. State. was sentenced to imprisonment in the penitentiary for five years. The prosecution was brought under section 93 of the Criminal Code, which provides that "every person who shall willfully and maliciously remove, break, displace, throw down, destroy, or in any manner injure any iron, wooden, or other rail, or any branches, or branch ways, or any part of the tracks, or any bridge, viaduct, culvert, trestle work, embankment, parapet, or other fixture, or any part thereof, attached to or connected with such tracks of any railroad in this state, now in operation, or which shall hereafter be put in operation, or who shall willfully and maliciously place any obstruction upon the rail or rails, track or tracks, of any such railroad, shall be punished by imprisonment in the penitentiary not less than one year nor more than twenty years," etc. Neither in the petition in error nor the brief filed is any complaint made of the instructions, or of any ruling of the trial court in the admission and rejection of testimony, but the principal ground urged for reversal is that the verdict is not justified by the evidence. By undisputed testimony it is shown that near 12 o'clock of the night of August 24, 1890, and a short distance from the town of Chapman, in Merrick county, all the spikes and bolts were removed from one of the rails which formed a part of the main track of the railroad, then owned and operated by the Union Pacific Railway Company, and a steel claw-bar, about six feet long and two inches thick, was placed in such position upon one of the rails of the track and against a tie, as would most likely have derailed a train, had one attempted to pass. The testimony also shows that the tool house of the company at Chapman station was broken open and the claw-bar in question taken therefrom. Shortly after 12 o'clock of the night referred to, the defendant went into the office of the railway company at Chapman and informed the night operator that the track |