3 Blackf. 28 | Ind. | 1832
The indictment contained two counts. The
It is conceded by the counsel for the state, that the indictment is founded on the 4th section of the act of 1829, amendatory of the act relative to crime and punishment. That section contains the following description of the offence: “who shall buy, conceal, or receive any stolen goods and chattels, knowing the same to be stolen, with intent to defraud the owner,” &c. In Hawk. P. C. 229, sec. 68, in 3 Bac. Abr. 570, and in 1 Chitt. C. L. 232, the rule is said to be general, that in indictments upon statutes, unless the statute be recited, the indictment must bring the offence within all the material words of the statute; that neither intendment nor conclusion is sufficient unless this be done. Appropriate cases in illustration of the rule are given by those writers. Chitty, speaking of indictments upon, statutes, remarks, “and not even the fullest description of the offence, were it even in the terms of a legal definition, would be sufficient without keeping close to the expressions of the statute.” In- page 237, he further remarks, that “it is in every case advisable to attend, with the greatest nicety; to the words contained in the act, for no others can be so proper to
Adopting this well supported rule, in the. examination of the count before us, it would seem clear that the offence described in the statute is not charged in the count. The purchase, concealment, or reception of stolen goods, to subject to the punishment prescribed by the statute, must be in the language of the statute, “with intent to.'defraud the owner.” The intent .constitutes the liability to the punishment prescribed. It is the gist of the offence, and essentially descriptive of it. If the intent were not proved on the trial, guilt under the statute would not attach; and if the intent be necessary to be proved in order to convict, it would seem necessarily to follow, that the count not charging the intent is insufficient. It is however contended, that the word “feloniously” used in the count, from its legal import, fixes the criminality of the act charged, and well supplies ■ the absence of the words of the statute. In answer to this it may be observed, that this is an offence created by the statute itself highly penal, and that agreeably to the authority referred to, not even, the fullest description in the terms of a legal definition is sufficient, without keeping close to the expressions of the statute. The cases of Rex v. Pemberton, 2 Burr. 1035, Commonwealth v. Boyer, 1 Binn. 201, and Commonwealth v. Morse, 2 Mass. Rep. 128, strongly support the rule laid down by Hawkins, Bacon, and Chitty. The latter case is analogous to that before us. It was an indictment upon a statute against forgery and counterfeiting, describing an offence .in these words, “or shall have in his possession any such plate or plates engraven in any part, or any paper, &c., devised, adapted, and designed as aforesaid (that is, for the purpose of counterfeiting) with intent to use and employ the same in forging,” &c. The indictment did not charge that the defendant was possessed of the said paper with “intent,” &c. It was adjudged defective, and judgment arrested.
The view we have taken is additionally sustained by the repeal, in 1829 of the 6th section of the act of 1824, relative to crime and punishment. By the latter branch of that section, “every person who shall buy or receive stolen goods, knowing the same to be stolen, shall upon conviction be punished,” &c. The count we are examining would have been good under that
The count is defective, and the defendant’s motion in arrest of judgment should have been sustained by the Circuit Court.
The judgment is reversed. To be certified, &c.
Rev. Code, 1831, p. 181, the same with the act of 1839.