People v. Bogart

| Cal. | Oct 15, 1868

By the Court, Sanderson, J.

The general rule undoubtedly is, that the stolen property, if money, should be described as so many pieces of current gold or silver coin, specifying the species of coin; but, if the species of coin be unknown to the Grand Jury, they may so state, in lieu of such specification. In "this respect the law does not require greater certainty than the nature of the ease affords. Accordingly, it has been held that “sundry gold coins, current as money in this Commonwealth, of the aggregate value of twenty-nine dollars, but a more particular description of which the jurors cannot give, as" they have no means of knowledge,” occurring in an indictment for larceny from the person, is a sufficient description. (Commonwealth v. Sawtelle, 11 Cush., Mass., 142.) So of the following description: “Sundry bank bills of some banks respectively to said jurors unknown, of the amount and value in all of thirty-eight dollars.” (Commonwealth v. Grimes, 10 Gray, 470.) The same rule has been applied by this Court to the description of the mode and means by which the homicide was committed in an indictment for murder. (People v. Cronin, 34 Cal. 191" court="Cal." date_filed="1867-07-01" href="https://app.midpage.ai/document/people-v-cronin-5436520?utm_source=webapp" opinion_id="5436520">34 Cal. 191.) While the law requires in an indictment precision and certainty sufficient to enable the defendant to determine whether the case stated constitutes a criminal offense, and to enable him to prepare his defense and plead the conviction, or acquittal, as the case may be, in bar of another indictment, yet it does not carry the rule so far as to shield a party from punishment where it is plain that he has been guilty of crime. Hence, tacts not vital to the accusation, and constituting merely matter of description, may be stated in an indictment as unknown to the Grand Jury, if such is the case. (People v. Taylor, 3 Denio, 91" court="N.Y. Sup. Ct." date_filed="1846-05-15" href="https://app.midpage.ai/document/people-v-taylor-5465260?utm_source=webapp" opinion_id="5465260">3 Denio, 91.)

In another respect, however, the indictment is bad. The ownership of the money is laid in “Wells, Fargo & Co.,” without any specification of the copartners, if it is a partnership, or any allegation that “Wells, Fargo & Co.” is a corporation, if such is the case. At common law, if the stolen goods are the property of partners, or joint owners, the names of all the partners, or joint owners, must be stated. (Commonwealth v. Trimmer, 1 Mass. 476" court="Mass." date_filed="1805-05-15" href="https://app.midpage.ai/document/commonwealth-v-trimmer-6402876?utm_source=webapp" opinion_id="6402876">1 Mass. 476; Hogg v. The State, 3 Blackford, 326; State v. Owens, 10 Rich. L. R., S. C., 169.) To avoid this difficulty, the statute 7 Geo. IV, C. 64, S. 14, was passed, which provided that where the stolen goods were the property of partners, joint tenants, parceners, or tenants in common, it should be sufficient to charge the property in one of them by name, and another or others, according to the fact; but we have no such statute in this State. Hence, if “Wells, Fargo & Co.” is the name or style of a firm or copartnership, the names of the several persons who compose the firm should have been stated. If, however, “Wells, Fargo & Co.” is the name of a corporation, the indictment would have been good had it contained an allegation to that effect. (2 Russ. on Crimes, 99; People v. Schwartz, 32 Cal. 160" court="Cal." date_filed="1867-07-01" href="https://app.midpage.ai/document/people-v-schwartz-5436299?utm_source=webapp" opinion_id="5436299">32 Cal. 160.)

Under the foregoing view it becomes unnecessary, for the purposes of the present, indictment, to determine whether the case made by the testimony falls under the sixtieth or the seventy-first section of the statute in relation to crimes and punishments. If another indictment is found, all controversy upon that question can be readily avoided by inserting two counts—one charging a felonious taking, and the other a felonious conversion.

Judgment reversed and cause remanded for further proceedings, and remittitur directed to issue forthwith.