People v. Logan

| Nev. | Jul 1, 1865

Opinion by

Lewis, C. J.,

full. Bench concurring.

The defendant was indicted by the .Grand Jury of Ormsby County, under section 85 of the Bevenue Act of 1862.

The indictment sets forth that the defendant, on the 3d day of September, A. D. 1862, was elected Tax Collector of the County of Ormsby, and that on the 12th day of the same month he duly qualified and entered upon the duties of his office; that prior to the first Monday of May, A. D. 1864, there had been issued to the defendant, as Tax Collector, by the Auditor of the County of Ormsby, a license, authorizing the licensee, to retail spirituous, malt and fermented liquors, the same being a fifteen dollar license; that on the 19th day of June, A. D. 1864, at said County of Ormsby, the defendant, instead of returning the said license to the Auditor on first Monday of May, A. D. 1864, as required by law, willfully, unlawfully and feloniously retained, and had in his possession, the same license, with intent to put the same in circulation. It is also charged that on the 19th day of June,A. D. 1S64, in the County of Ormsby aforesaid, the defendant did willfully, unlawfully and feloniously issue the said license; that on the 19th day of June, A. D. 1864, in the County of Ormsby, the defendant unlawfully, willfully and feloniously altered the license aforesaid, from a fifteen dollar to a forty-five dollar license, and willfully, unlawfully and feloniously issued the same to certain parties mentioned.

To this indictment defendant interposes a demurrer, assigning several grounds, only two of which need be noticed.

First — That the indictment does not state facts sufficient to constitute a public offense; and

Second — That it does not substantially conform to sections 234 and 235 of the Criminal Practice Act of the State of Nevada.

This demurrer was sustained by the Court below and an order made re-submitting the case to the next Grand Jury of the county. From the ruling of the Court,, sustaining the demurrer, the people appeal.

A preliminary motion was made by defendant’s counsel to dismiss the appeal, upon the ground that the final judgment not having been entered no appeal could be taken; that no appeal will lie from an order sustaining a demurrer to an indictment, and some authorities from California are relied on to sustain this position.

But these decisions were based upon a statute essentially different from ours; and I do not think it necessary to look beyond the Practice Act itself to determine this question. Indeed, section 469 seems to cover this case exactly. It provides “ that the party aggrieved in a criminal action, whether that party be the people or the defendant, may appeal as follows : First, to the Probate Court of the county from a final judgment of a Justice’s Court; Second, to the Supreme Court from a final judgment of the District Court, in all criminal cases; also, from, an order of the District Court allowing a demurrer ¡ grcmbi/ng or refusing a new t/riad?"

There can be no diversity- of opinion as to the interpretation to be put upon this language. The last clause of the section allows an appeal from “ an order of the District Gov/rt .allowing a demurrer.” But it is claimed by defendant’s counsel that as it is the duty of the Court under section 289 of the Criminal Practice Act, to “ give judgment either allowing or disallowing ” the demurrer, it could not have been intended to allow an appeal where no judgment is so given upon sustaining the demurrer.

I can see no reason for putting so restricted an interpretation upon these general words of the statute; the reason is all against it. If the appeal is to be confined to cases where final judgment is rendered, the latter portion of-subdivision second of section 469 is utterly nugatory and of-no force or effect; because an appeal from a final judgment is expressly provided for by the first portion of the section. Indeed, such an interpretation can only be adopted by disregarding the (¡ardiñal rule, that in the construction of a statute effect is to be given, if possible, to every clause and section of it. .If any effect is to be given to the words, “ Also, from an order of the District Court, allowing a demurrer,” we must hold that an appeal will lie from an order sustaining the demurrer, regardless of whether judgment is entered or not.

Again, there is a complete answer to the position taken by defendant’s counsel in the language of the section itself, which allows an appeal from an order / and an order can in no sense be considered a judgment. It would be difficult to find words which would more clearly express the intention of the Legislature than those employed in section 469. The first clause of subdivision second authorizes appeals from final judgments, and the second clause provides for an appeal from an order allowing a demurrer, which is precisely the case at bar. I think, therefore, that this appeal was properly taken.

This brings us to the consideration of the sufficiency of the indictment upon which the defendant was arraigned.

We recognize the fact that the tendency of all modern legislation and judicial decisions is to ignore the correctness of form which was required at common law, but it is a tendency perhaps more to,be deplored than encouraged. By this attempt to ignore the formula of the cbmmon law, our entire system of pleading has gradually passed from the extreme of technical exactness into the opposite, of loose, careless and slovenly inaccuracy, which is more fruitful in perplexing and annoying the Courts than in furthering the ends of justice.

The express provisions of our Practice Act, of course, cannot be disregarded, but Courts should not go beyond” its strict letter to encotu’age carelessness in pleading.

The indictment in this case I think radically defective. That section of the Revenue Act. under which it was found, provides that, “if either the Treasurer, County Auditor, Tax Collector or any person shall have in his possession, with intent to circulate, or put in circulation, any other license than those properly issued to the Tax Collector under the provisions of this Act, the person so offending shall be guilty of felony, and on conviction, be sentenced,” etc.

The words of the statute creating the offense, or words of similar import, should be used in the indictment. In this case the having in possession with intent to circulate, or putting in circulation any license other than those properly issued, is what constitutes the offense; but nowhere in this indictment are these words, or words of a similar import used, but on the contrary it is expressly charged that on the 19th day of June, A. D. 1864, the defendant did “willfully, unlawfully, and feloniously issue” a license which had b&&& properly issued on the part of the plaintiff to him. This surely is no crime, but the strict performance of his duty. But it is urged on behalf of the people, that as the defendant did not return the license in question to the Auditor on the first Monday in May, as required by law, therefore, it must be taken to be a license other than one properly issued. In other words, that the failure to return a license properly issued, at the time required bylaw, ipso facto, makes it a license improperly issued. I do not think this position, tenable. How the mere neglect to return a license once regular and properly issued, will change it so as to make it a license other than one properly issued, I am unable to see.

There is a further answer to this position of counsel, however, which is conclusive, even if it be admitted that such a license was one improperly issued: that is, it is not directly charged in the indictment to be such. The facts are'stated that the defendant issued to Ralston & Bro. a license which, bylaw, he should have returned to the Auditor a month prior thereto; arguendo we might say, that it was therefore a license improperly issued; but this is argumentative, and not good even in civil pleading, much less so in an indictment. (Com. Dig., pleading.')

When the defendant was sued for taking away the goods of the plaintiff, he pleaded that the plaintiff never had any goods; this was an infallible argument, but it tvas held not to be a good plea. The charge in an indictment should always be positively laid, and not inferentially. Archbold says: “ The want of a direct allegation of anything material in the description of the substance, nature or manner of the offense, cannot be supplied by any intendment or implication whatever.” (Arch-bold’s Criminal Practice and Pleading, 87.) So strictly observed is this rule, that “in an indictment for murder the omission of the-worcls ex maUtia proecogelata is not' supplied by the words feloniee rrmnlrmit, although the latter words imply them.” Ib.

Again, counsel contend that the indictment charges the defendant with having changed the license from a fifteen to a forty-' five dollar license before issuing it, and that therefore the conclusion is irresistible that it was a license other than one properly issued. True, the argument is infallible; but the point is subject to the sanie objection as the other; it is argumentative.

Numerous other objections are urged to the indictment, but we do not think it necessary to pass upon them. The ruling of the Court below' is sustained.