91 P. 936 | Wyo. | 1907
Lead Opinion
- An information was filed by the county and prosecuting attorney of Converse County against the plaintiff in error, William McGinnis, for the crime of robbery. The charge contained in the information being as follows: “That William McGinnis, late' of the county aforesaid, on the 12th day of December, A. D. 1905, at and in the county aforesaid, the said William McGinniss did then and there unlawfully, forcibly and feloniously take from the person of Norvil Lawrence by violence the sum of fifty dollars, and, more, lawful money of the United States and of the value of fifty dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.” To this information the defendant, McGinnis, pleaded “not guilty.” On the trial the jury returned a verdict of guilty against him, and he moved in arrest of judgment on two grounds: First, because the defendant had not been given a preliminary examination by an examining magistrate before the information was filed in the district court; and second, because the facts stated in the information are not sufficient to constitute an offense. The motion was denied-by the court, and the defendant sentenced to a term in the penitentiary, and he brings error.
The objection that the defendant had not been given a preliminary examination, if such was the fact, and if. the case was one requiring it under the provisions of Sec. 5273, R. S. 1899, should have been presented by a motion to quash if the grounds appeared upon the face of the record ; otherwise by plea in abatement; aid not having been so taken was waived by the plea of not guilty, by the express terms of the statute. (Sec. 5326, R. S. 1899.)
The other objection that the facts stated in the information do not constitute an offense, is one of the grounds upon
That the ownership of the property alleged to have been taken must be stated in an indictment or information for robbery has been- generally held by the courts of last resort in those states where the question has arisen. In a recent case in the supreme court of Iowa, under a statute which provides : “If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subj ect of larceny, he is guilty of robbery,” it was held that the offense thus created by the statute embraces all of the elements of the crime under the common law. And that robbery is but an aggravated form of larceny both at common law and under the statute; and as larceny is defined to be the felonious taking of the property of another, an allegation of- ownership is necessary in an indictment for
We find nothing in the case of In re Myrtle, Cal. App., 84 Pac., 335, in conflict with the rule as stated in the other California cases.- It is there said: “In the Ammerman case the taking of the property might have been for some other purpose, for the language of the information does not intimate that the object was to steal it any more than the mere naming the crime ‘robbery’ might tend to indicate a. theft, and there being no allegation of ownership and no words used by which any inference could be drawn of ownership in one other than the defendant, except the mere possession Richard Johnson had of the money taken by Ammerman at the time. We think the decision in that case was correct.” Further on in the opinion in commenting on the case of People v. Cleary, supra, it is said: “We reiterate all that was said in this opinion of People v. Cleary as applied to the facts in that case and in all cases of like character,'where there is a plea of not guilty and a motion in arrest of judgment, and we still maintain that in all cases of-robbery it must appear either from the language of the information. or the plea of the defendant that the property taken is not the property of the defendant.”. If the information charged no offense it could not be plead in .bar of a subsequent prosecution. (State v. Brown, 47 O. St., 102.) The
It is contended that as the information in the ease at bar charges a felonious taking, that implies a taking of
We need notice but one other point contended for by counsel for defendant in error, viz.: that this objection to the information was waived by a failure to move to quash. This contention can only be based upon the fact that the information is defective. For, if, as contended, it is sufficient, to charge the offense in the language of the statute, which-includes the word “feloniously,” then there is no defect in the information either in substance, form or in the manner in which the offense is charged, and nothing upon which a motion to quash could be based. ■ But as we think the information is fatally defective in substance, .and that the facts therein stated do not constitute an offense, the objection
In United States v. McNemara, 26 Fed Cases, No. 15701, an indictment for forcibly taking bank-notes from another,- the court on motion arrested the judgment because it was not stated in the indictment, whose property the bank-notes were. And in State ex rel. Conway v. Blake, 5 Wyo., 107, at 123 this court said: “-The only matter which has not been passed upon herein raised on the motion for arrest.of -judgment-is the sufficiency of the indictment. No claim was made upon the argument or in the brief that the indictment does not charge an offense, and an examination of it convinces us that it is good and would support a conviction of murder in any degree.” Thus clearly' indi-, eating that the sufficiency of the indictment to charge an offense may be raised by a motion in arrest. (See also Benjamin v. State, 121 Ala., 26; U. S. v. Hannon, 45 Fed., 414; Strickland v. State, 19 Tex. App., 518.)
Under our code of criminal procedure the defendant may demur to the information when- the facts therein stated do not constitute an offense, hut he does not waive that object tion by a failure to do so, and may raise that question for the first time by motion in arrest. That is not, however, one of the grounds for a motion to-quash, and we think it was not intended that a defect which the statute says may be taken advantage of by demurrer or motion in arrest, may also be taken by motion to quash. The motion to quash reaches defects in the form of the information, and in the manner in which the offense is charged, but does not reach the substance. If the facts stated constitute, an offense, but are imperfectly stated, a motion to quash is the proper remedy;' but if the facts stated do not constitute an offense, it should be challenged by demurrer or it may -be done by motion in arrest. Otherwise the provision of the statute authorizing a demurrer or motion in arrest on that ground would be superfluous. If a general demurrer to the inforr mation in this case should have been sustained, then it
The effect of sustaining a motion in arrest of judgment is clearly defined in the statute. (Sec. 5420, R. S. 1899.)
Reversed and remanded.
Dissenting Opinion
(dissenting).
I am unable to agree with the other members of the court in this case. In my opinion the plaintiff in error is not in a position to question the sufficiency of the information for its failure to specifically allege the ownership of the property taken. As against the motion in arrest, as well as the objection to the introduction of evidence, the information is, in my judgment, clearly sufficient. Though. it may follow, as a mere legal conclusion, the allegations of the information unquestionably, I think, negative ownership of the property on the part of the defendant, and the* defect in failing to make the allegation in that respect more ' specific is one. of uncertainty or indefiniteness which should have been objected to by a motion to quash, under our statute, and, no such motion having been made, the objection was waived by the plea of not guilty. It is true that an allegation of ownership of the property taken is essential at common law in an indictment for robbery, and I am willing to concede that such an allegation to render the
It is true that at common law if ownership was not proved as alleged, it might constitute a fatal variance, but the effect of variance in that as well as other particulars has been greatly modified by our statute, as well as by the statutes of many of the states. All respect is due and conceded to the approved language of the common law in alleging ownership, but apart from its virtue of particularity it has no greater value than other appropriate words having the same effect and which clearly preclude any right to the property on the part of the defendant. At common law, and, no doubt, by express statute in several of our states, a criminal indictment or information is required to state all the material facts and circumstances comprised in the definition of the offense sought to be charged positively, and with clearness and certainty; _and in charging the offense all the essential facts must be stated with particularity and not by way of legal conclusion.
Prior to the enactment of statutes limiting the same, a demurrer and a motion in arrest' at common law might be made for want of sufficiency in the indictment respecting the time, place, or offense material to support the charge,
It should be remembered that the precise technicalities of the common law in respect to the framing of a criminal indictment were adopted and required at a period when a defendant was not given as a right the benefit of counsel and was not permitted to testify in his own behalf. The
In discussing the principle that every material fact entering into an ■ offense must be alleged with reasonable clearness, directness and precision, to the end that the indictment shall fully inform the accused of the exact charge against him, it was said by the court in Maine: “It-is plain, however, that much of the usual tautology and wearisome prolixity which characterized indictments in the early period of criminal procedure can be safely avoided without any infringement of this sacred right of the citizen. It is the' policy of our modem courts to encourage a more rational system of pleading, with greater directness and simplicity, with less verbiage and needless repetition.” (State v. Perry, 86 Me., 427 (41 Am. St., 564.) In considering a demurrer to an indictment in a recent case in the federal court of Georgia, the learned district judge said: “It is not impossible that at certain stages in the evolution of our criminal law, the arguments so "ably ad
In a recent case decided by the United State circuit court of appeals, Eighth circuit, the court said: “Learned counsel for defendant, in arguing the legal sufficiency of the present indictment, urges us to recognize and apply the criterion of the hornbooks of the law that certainty to a common intent is not sufficient, but that a high degree of certainty in every particular is required. This was anciently the fixed rule of criminal pleading, but of late years its rigidity ■has been somewhat relaxed. The well known canons -of construction employed to ascertain the meaning of written instruments should not be ignored to secure mere technical accuracy, when that is unnecessary for the legitimate protection of the accused. Language should not be strained
With these introductory observations intended to show the modern tendency, in a general way, in the interpretation of criminal pleadings, and bearing in mind the object to be attained by the rules affecting the allegations of an indictment, we may the more intelligently approach a consideration of our statutory provisions upon the subject. In the first place, there is a general declaration that no indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected, “first, by the omission of the words ‘with force
By Section 5307 it is declared that where it is necessary to allege an intent to defraud, it shall be sufficient to allege such intent generally without alleging an intent to dfefraud any particular person; and that the proof need only show
While discarding many of the technical refinements of the early criminal procedure, the legislature has not been unmindful of the rights of an accused, but has granted him certain privileges not allowed at common law, which furnish a much more substantial protection to one charged with crime than many of the requirements formerly but not now regarded as essential. Among such substantial benefits now conferred upon an accused may be mentioned the right to be represented by counsel, and if unable to employ counsel to have counsel appointed to defend him at public expense; the right to testify under oath in his own behalf, or at his own election to make a statement without being sworn, and the right to have witnesses summoned to testify in his defense at public expense.
Under our criminal procedure a copy of the indictment or information for felony must be delivered to the defendant, if in jail, or, if on bail, to him or his attorney, and without his consent he cannot be required to answer an indictment or information charging felony until at least one day shall have elapsed after the service of a copy thereof upon him as aforesaid. Before arraignment it is also required that he shall be assigned counsel at his request, if he has not been able to engage any; and thereupon it is required that he be allowed a reasonable time to examine the indictment or information and prepare exceptions thereto. (Rev. Stat. 1899, Secs. 5318-5320.) Thus reasonable opportunity is afforded by the statute to a defendant
The statute then proceeds to prescribe the various methods for raising objections to an indictment or information. The three methods so prescribed are, first, a motion to quash; second, a plea in abatement; third, a demurrer. (Id., Sec. 5321.) “A motion to quash may be made in all cases where there is a defect apparent upon the face of the record, including defects in form of the indictment, or in the manner in which the offense is charged.” (Id., Sec. 5322.) “A plea in abatement may be made when there is a defect in the record, which is shown by facts extrinsic thereto.” (Id., Sec. 5323.) “The accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of this state, or when the intent is not alleged, when proof of it is necessary to make out the offense charged.” (Id., Sec. 5324.) It is then provided: “The accused shall be taken to have waived all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment or information, or by pleading in bar, or not guilty.” (Id., Sec. 5326.) A motion in arrest of judgment, after verdict, may be granted only for either of the following causes: (1) That the court had no jurisdiction to try the case; (2) that the facts stated in the indictment or information do not constitute an offense. (Id., Sec. 5418.) Section 5419 expressly provides that no judgment can be arrested for a defect in form.
From the provisions above mentioned, it is clear that the statutes of this state have made material changes in criminal procedure in respect to the manner of excepting to an indictment. At common law, and that is the rule under the statutes of a majority of the states, perhaps, a motion to quash is áddressed to the sound discretion of the court, and, if refused, is not á proper subject of exception. Such a motion, in other words, was not regarded as one of right,
Coming now to the information in this case, we find that it is charged that the defendant did “unlawfully, forcibly and feloniously take from the person of Norvil Lawrence by violence the sum of fifty dollars and more, lawful money of the United States, and of the value of fifty dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.”
The section of our statute defining robbery is embraced in the chapter entitled “Crimes Against the Person,” while the- sections defining larceny and' burglary and the like are found in - another chapter entitled “Crimes Against Prop
It is insisted, and I willingly concede, that the statute does not intend by its definition of the crime to make one guilty of robbery who takes by violence, from the person of another, his own property. But that conclusion arises from the use in the statute of the word “feloniously.” Bearing-in mind that such an act would not constitute robbery at common law, we observe that it was never deemed necessary in the common law definition to say that one who takes the property of another by violence shall be guilty of robbery, but it was deemed sufficient in defining the crime by the rule of the common law to use the word “felo-niously” in describing the act of taking in addition to the words embracing violence or the putting in fear. In other words, the common law definition was deemed sufficient to exclude the idea that the property taken belonged to the one who committed the act. By the same construction applied to our own statute, the definition of the crime excludes ownership by the defendant of the property taken.
The same sensible and reasonable construction applied to the information in this case just as thoroughly and con
The statute of Washington requires an information to be “direct and certain” as it regards (i) the party charged, (2) the crime charged, (3) the particular circumstances of the crime charged, when they are necessary to constitute a complete crime. A motion to quash is not one of the pleadings allowed. The only method of objecting to the structure of an indictment is by demurrer, and it lies, among other grounds, when the indictment does not substantially conform to the requirements of the code. It lies, therefore, in that state for uncertainty and when the charge as to any particular circumstance is not “direct and certain.” Very different from our statute.
The general rule is that as to a purely statutory offense it is sufficient to charge it substantially in the language of the statute. But it is also generally held that that rule has no application as to a common law crime where the statute has defined it in generic terms, but that in such case the information or indictment would be insufficient in merely following the statute. Where, however, the statute in defining a common law crime defines it by stating all the material facts which go to make up the crime, then it is generally held sufficient, at least as against a motion in arrest, to charge the crime in the language of the statute.
So far I have discussed the question from the view point that since the statute states that the facts alleged in the information shall constitute robbery, it must be held that the information itself charges that crime" as against a motion-in arrest. I am willing, however, to concede that in the interest of good pleading the information ought to be more direct and certain as to the ownership of the property, but I maintain that the defect in that particular could only be reached by a motion to quash, and no such motion having been made the defect was waived.
Is it possible to maintain that the defendant, upon an inspection of this information, was not thereby informed of the nature and cause of the accusation against him so as to enable him to prepare his defense? Or, is it possible to maintain that it would not furnish him a sufficient protection against a subsequent prosecution for the same offense? Or, can it be reasonably maintained that the court would not be able, upon reading the allegations, to determine whether or not a crime and what crime is charged? To each of these inquiries I think the answer must be in each case that no such position can be maintained.
Ret us now examine the meaning and effect, as determined by judicial authority,' of the word “felonious.” While that is a technical word, it has always been held to imply a criminal intent, and, as descriptive of the act charged that it was done with intent to commit a crime, or, as said in a Montana case: “It means that the act was done with the mind bent on that which is wrong, or, with
The words “feloniously, purposely, and with premeditated malice,” with which assault and battery was alleged to have been committed, were held sufficient to show that the offense charged was committed in a rude, insolent and angry manner, and, therefore, .to constitute the offense as defined by statute. (Hays v. State, 77 Ind., 450; Knight v. State, 84 Ind., 73.)
In Indiana many objections must be taken advantage of by motion to quash, and if not, they are deemed waived. The supreme court of that state has said that “on a motion in arrest, if the indictment is found to contain all the essential elements of a public offense, even though to some extent defectively stated, it will be held sufficient.” And again, “In criminal pleading, for uncertainty iii the statement of the facts constituting the offense intended or attempted to be charged, an indictment or information can onl}>- be assailed or quashed by a motion, to quash and never by a motion in arrest, or by an assignment here, for the first time, that the facts stated in the pleading are not sufficient to constitute a public offense.” And the court again comes to the same conclusion as to the effect of the words “unlawfully, feloniously, purposely, and with premeditated malice,” descriptive of the manner in which an alleged assault and battery was perpetrated, and the court says: “If it was done unlawfully and also feloniously, purposely and with premeditated malice, it was done in an angry manner, and more.” (Chandler v. State, 141 Ind., 106.) In Hamilton v. State, 142 Ind., 276, the word “feloniously” was held to be used in the statute defining the offense of larceny to supply that element of the ordinary definition of larceny
In State v. Halpin (S. D.), 91 N. W., 605, it is held that the word “feloniously,” when applied to an act, means that it was done with intent to commit the crime named in the information. In State v. Fordham (N. D.), 101 N. W., 888, a robbery case, it was held that an allegation that the property was wrongfully and feloniously taken covered the intent to steal and that it was not necessary to further allege that the property was taken with intent to steal it. In Keeton v. State, 70 Ark., 163, an indictment for robbery which alleged that the accused did feloniously and violently take certain property from the person of the prosecuting witness, by putting him in fear and against his will, is sufficient, without alleging that he “did steal, take and carry away” such property. The ground of the decision was that the words “feloniously did take from the person,” as used in the indictment, imported a stealing and an asportation with intent to deprive^ the person of the lawful possession of the property in the goods. It is true that in that same state it had previously been held that an indictment for robbery was .insufficient which failed to specifically allege the Ownership of the property. (Bolés v. State, 58 Ark., 35.) But in that case the indictment did not have the word “steal” dr “feloniously take,” and, therefore, it may be said that it did not have words charging in substance or by legal conclusion or otherwise that there was. an intent to steal the property.
As in Arkansas, so in Washington, notwithstanding that it had been held that the omission of an allegation of ownership rendered an indictment insufficient, it has been held that to charge the asportation or taking in the language of the statute defining robbery is sufficient, and an information charging that the defendant “did forcibly and feloniously take from the person” of the prosecuting witness certain property sufficiently alleged the asportation without the use of the words “carried away.” And the court cites the Arkansas case among others, and also refers to a previous case in Washington and one in California (19 Wash., 410; 123 Cal., 273), where an information was held sufficient which did not allege the asportation otherwise than in the language of the statute. (State v. Smith, 82 Pac., 918.) If- the charge that a defendant did forcibly and feloniously take certain property from the person of a named prosecuting witness sufficiently charges the asportation and the stealing..thereof; and I think the courts have rightly held such to be the case, then I must confess that I find it difficult to regard otherwise than as extremely technical and without any substantial reason the holding that in addition to those words the ownership of the property must be alleged as against a motion in arrest on the ground that a public offense is not charged. If, as the authorities all state, the object of alleging ownership is to negative defendant’s
From a careful examination of the authorities upon this subject I am more than ever clearly convinced that statements in cases from other states to the effect that the absence of an allegation of ownership renders the indictment fatally defective are not even to be accepted as persuasive authority in this state unless the decisions were rendered under statutes like our own. It is evident that a statement that a failure to make such allegation constitutes a “fatal defect” may be used by a court, and I think has generally been used in the more recent cases, to indicate that it is a “fatal defect” as against an objection thereto properly raised under the statute of the particular state. To illustrate, it may no doubt be reasonably held a fatal defect in our state as against a motion to quash; but as against a motion in arrest or a demurrer that it would be waived without a motion to quash. To say that the allegation is one of substance does not meet the question, because it is evident that under our statute there may be a defect in alleging a matter of substance which would be waived if not objected to by a motion to quash. The cause for such a motion, “the manner in which the offense is charged,” applies to something more than a matter of mere form in
California cases have béen referred to as holding necessary an allegation of ownership in charging robbery. However, by a recent case decided in that state by one of the appellate courts, which was concurred in by the judge who wrote the opinion in the Ammerman case, it is evident that the defect was held to be fatal in the other cases under statutes altogether dissimilar from our own; and that it was not intended to hold that without the allegation the essential elements would not be substantially charged. In the case of In re Myrtle, 84 Pac., 335, a habeas corpus case, which had been instituted by one sentenced upon a plea of guilty of robbery upon an information which did not contain an allegation of ownership, but which did allege a felonious taking from the person, it was said: “It is doubtless true that a complete description of the crime of robbery includes an allegation of ownership of the property taken, or words which will at once indicate that such property is not the property of the robber, but in our opinion * * * where the complaint and information charge” that the defendant ‘did wilfully, unlawfully, and feloniously steal, take and carry away, from the person and immediate presence of the person robbed, certain personal property, describing it,’ ¡etc., substantially describes the crime bf robbery in the language of the code defining it, and, no objection being made by either demurrer or motion in ar
Under the California code a motion in arrest may be founded on any defect in the indictment or information for which a demurrer may be filed, unless waived by a failure to demur; and a demurrer may be filed on several grounds, one ground being that the information does not substantially conform to the requirements of the statute as to the contents of an indictment or information. And the statute prescribing what an indictment or information shall contain says, among other things, that it must be direct -and certain as regards (i) the party charged, (2) the offense charged, (3) the particular circumstances of the offense charged when they are necessary to constitute a complete offense. (Penal Code of California, Secs. 1185, 1004, 952.) The code of Iowa, from which state a case has been referred to, provides that a motion in arrest of judgment may be made for any ground which would have been a ground for demurrer; and a demurrer may be filed on the ground among others that the indictment does not substantially conform to the requirements of the code; and the code requires that the indictment must be direct and certain in the same respects exactly as stated in the California code. It would seem, however, in Iowa that a failure to demur does not necessarily waive the right to move in arrest. (Code of Iowa, 1897, Secs. 5426, 5328, 5282.)
The proposition is further illustrated by the California case of People v. Mead, 78 Pac., 1047, which was a prosecution under the statute charging the defendant with the crime of conniving at, consenting to, and permitting his wife to be placed in a house of prostitution. On a motion in arrest it was contended that the statute was not to be construed literally as forbidding a husband to permit his
In California it is also held that a person imprisoned under an indictment which does not charge a public offense may obtain his discharge on a writ of habeas corpus. (Ex parte Goldman, 88 Pac., 819.) In connection with the Myrtle case this goes to show that the defect in failing to allege the ownership did not render the information insufficient as failing to state a public offense, because if it did then there must have been a discharge of the prisoner in the Myrtle case; but the only defect it is plain was one of uncertainty in stating the particular circumstances of the offense.
The criminal code of Ohio is like our own as to a motion to quash. And there are several cases in that state to the effect that any defect short of one which renders the information entirely insufficient- to charge a public offense must be raised by motion to quash. (Carper v. State, 27 O. St., 572.) It was said in State v. Messenger, 63 Ohio State,
These cases serve also to illustrate what I have said that, though a case may be -found holding a certain “defect” to be “fatal,” does not necessarily mean that it renders the information insufficient to state an offense, but it may, and I think in most cases does, mean only that it is a fatal defect as against the particular objection raised, such as a motion to quash or a demurrer; although in most cases the defect may be one merely of uncertainty, lack of precision or failure to make the charge specific as to some particular element.
I am thoroughly convinced that our statute was intended to make a demurrer and motion in arrest proper in only two cases: (i)' Where the offense charged, though sufficiently charged, is not an offense under our laws either because the act creating it is unconstitutional and void, or because there is no statute or other law making the act a crime, and (2) where some necessary element of the offense is not contained in the information in any way, either by specific allegation, legal conclusion, or by necessary implication of the words used. Where the allegations of the information taken in their ordinary technical significance
The evil of any other rule or any other construction of our statute is well exemplified by the case at bar. I cannot imagine for one moment that the defendant was unaware of the nature and cause of the accusation against him, or that by the information he was rendered unable to properly prepare his defense. It is very clear to my mind that he went into the trial with astute counsel fully equipped to present his defense as completely as the facts would warrant without any deprivation of right in that respect by reason of the alleged imperfection of the information. Had he felt that his rights would have been better protected by, an allegation of ownership of the property taken, he could have made a motion to quash on the ground that such allegation was omitted from the specific allegations, and in my opinion he ought to have raised the objection in that manner. The court could then have quashed it, a new information could have been filed, perhaps immediately, and unless the defendant desired himself to delay a trial, a trial could probably been had the same term of court upon a new information. It may be that now, caused by lapse of time, it will be impossible to obtain the necessary witnesses, and the defendant, by reason of the technical objection made for the first time after the swearing of the jury, may be allowed to go free without a proper punishment for a crime of which the jury found him to be guilty.
I am most seriously impressed with the necessity of taking a broad view of these statutes and of giving effect to the intention of the legislature which I believe has been reasonably and clearly expressed, and which unquestionably depart very far from the common law method of criminal procedure, rendering the decisions under the old method,