43 So. 952 | Miss. | 1907
delivered the opinion of the court.
The indictment in this case contains two counts, and was drawn under § 1058 of the Code of 1892. That section provides that: “If any director, agent, clerk, servant, or officer of any incorporated company, . . . shall embezzle or fraudulently secrete, conceal or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods,” etc., “he shall be guilty of embezzlement and shall be punished,” etc. The first count of the indictment did not add at the conclusion thereof “against the peace and dignity of the state of Mississippi.” Those words were added after the second count. The appellant filed a demurrer to the first count in the indictment, and also a demurrer to the second count in the indictment. The demurrer to the first count was because, as alleged, it did not conclude with the words “against the peace and dignity of the state of Mississippi,” as required by section 169 of the constitution. The second count was demurred to on certain grounds not necessary to state. The demurrer to the first count was also expanded later, so as to express five other grounds, also not necessary, in the view we take of this case, to be stated. The district attorney obtained leave to amend the first count by adding at its conclusion the words “against the peace and dignity of the state of Mississippi.” The appellant excepted. The court sustained the demurrer to the second count, and overruled the demurrer to the first count as amended. Thfe appellant excepted.
Section 169 also expressly provides that “all prosecutions shall be carried on in the name and by authority of the state of Mississippi.” The first count of this indictment charges that the prosecution is “in the name and by the authority of the state of Mississippi,” but the second count does not repeat thát language. Is it possible that a demurrer' to the second count of the indictment would be sustained on the ground simply that those words, “that the grand jurors presented in the name and by the authority of the state of- Mississippi,” were omitted; the idea being that, unless those words were repeated in the second count, the prosecution was not, so far as the second count was concerned, in the name and by the authority of the state ? So to hold would be absurd. The words “in the name and by the authority of the state of Mississippi” are part of the preface of the indictment, just as the words “against the peace and dignity of the state” are part of the conclusion of the indictment, and all that is in the prefatory, as well as all that is in the concluding, part, applies equally to every count in the indictment, without being repeated uselessly therein. Put it in another view: Suppose the demurrer to the first count of this indictment had been sustained, and the first count stricken out. The learned counsel for appellant, to be consistent, would necessarily insist that the second count, also, should be stricken out, because it did not contain these words “in the name and by the authority of the state”; those words having fallen with the first count, in which, according to counsel’s theory, they were contained, which count had been stricken out. These two views serve to put in clear light the utter illogicalness of the view that the words “in the name and by the authority of the state of Mississippi,” in the preface of an indictment, or the words “against the peace’and dignity of the state,” in the conclusion of an indictment, are to be uselessly and tautologically repeated in every .count in the indict
This is the view clearly sustained by the best-reasoned cases. We refer to a few only. The supreme court of Tennessee, in the case of Rice v. State, 3 Heisk., 215, held that it was imperative. that all indictments should conclude “against the peace and dignity of the state,” but said it was sufficient if the whole indictment had that formal conclusion. It further said: “It is held that each count in an indictment must be a complete indictment in itself. This, we think, refers to the description of the offense, and not to the formal conclusion.” The constitution of Alabama has the same requirements our does; but that court held, in McGuire v. State, 37 Ala., 161, that it was not necessary to show that each count should conclude with ;these words. Whilst the Texas supreme court did hold that an indictment which did not conform strictly to this constitutional provision was invalid (Cox v. State, 8 Tex. App., 254, 34 Am. Rep., 746), that court nevertheless held that it was sufficient if the indictment as a whole concluded with these words, and that it was not necessary that each count should so conclude. Alexander v. State, 27 Tex. App., 533, 11 S. W., 628; McFarland v. State, 31 Tex. App., 472. Article 90 of the constitution of 1898 of Louisiana contains this same provision; but that court held, in State v. Thompson, 51 La. Ann.,
Finally, a case perfectly on all fours with this case and conclusive here is the case of State v. Amidon, 58 Vt., 524, 2 Atl., 154. The constitution there had the same requirements, and exactly what occurred here occurred there. There were two counts in the indictment, and a demurrer to each. The demurrer to the second count was sustained, and to the first count overruled. After the last count were the words “against the peace and dignity of the state.” Those words were not added to the first count. The court said: “Suppose this contention is conceded. Does not this indictment close with the very words prescribed? The indictment does not close at the end of the first count thereof. That count ends in the middle of the indictment.' The two counts together form the indictment. As the indictment closes with the very words prescribed by the constitution, the contention upon that basis is without support or foundation. In indictments, matters of form may be amended; matters of substance may not be. It may be difficult to express in exact language that will be applicable to every case what constitutes substances of an indictment, and what is merely formal. In general, I think it may be laid down that-the statement of every fact necessary to be proven to make the act complained of a crime is a matter of substance in an indictment, and that all beyond the order of arrangement of the precise words, unless particular words alone will convey the proper meaning, is formal.” And the court concluded by holding that the court below properly allowed the first count of the indictment to be amended by adding those words. And the United States supreme court, in the case of Frisbie v. United, States, 157 U. S., 160, 15 Sup. Ct., 586, 39 L. Ed., 657, said-: “So far as respects the objection that the count does not conclude that the offense charged was contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the United States, it is
Our view is that these words “against the peace and dignity of the state” are in the conclusion of the indictment, that the indictment does in the very language of the constitution conclude with those words, and that that conclusion applies to every count preceding the conclusion, and hence that the first count in this indictment needed no amendment of this sort. The sustaining of the demurrer to the second count of the indictment took that count out of the indictment, but did not take those words constituting the conclusion of the indictment, “against the peace and dignity of the state,” out of the indictment. They remained, and apply to this first coiint in the indictment, which, we think, was perfect against that assault. No amendment being necessary, it is out of place to observe upon the propriety of the amendment. It may be proper to remark that whether those words “against the peace and dignity of the state” constitute matter of form or matter of substance, as those terriis are used in the technical law of criminal pleading,- depends solely on the idea inherently set forth by those words, or, to put it differently, on the essential nature of the thing embraced by those words, and not upon the mere fact that the constitution required them to be used. If those words are of the substance of an indictment, they are so for the same reason that any other words are of the substance of an indictment, because they are essential to.the definition of the offense intended to be charged — not because they are required by the constitution to be used in the conclusion of the indictment. For example, if the constitution had done so foolish a thing as to say that an indictment should conclude ivith a picture of a drawn sword, since the constitution is the organic law of the
The second contention of the learned counsel for the appellant is that the appellant’s demand for a bill of particulars should have been complied with. The true rule on this subject is stated, we think, in 3 Ency. of Pl. & Prac., p. 529: “A party will not be obliged to furnish facts already known to his adversary, nor will a bill of particulars be ordered when the means of obtaining the facts are equally accessible to both parties.” See notes 1 and 2, and the numerous authorities therein. It is perfectly obvious from the facts in this record that the appellant knew better than anybody in the case everything which the testimony has disclosed. He kept the books himself, and made all the entries. As a matter of fact, all the books were in the custody of the receiver of the chancery court, and not in the possession of the state. They were consequently just as accessible to the defendant as to the state. He knew, without any bill of particulars, what no bill of particulars could possibly have disclosed, since he himself had made the record which condemned him. The court, therefore, committed no error in refusing the bill of particulars.
It is next very earnestly insisted by learned counsel for appellant that each of the alternative things defined in § 1058 of the Code of 1892 is a distinct offense from each of the other things alternatively therein stated; that, for example, to “embezzle” is one offense, to “fraudulently secrete” is another, to “conceal any goods,” etc., another, to “convert to his
It is not contended by learned counsel that it was incompetent to prove as many of these different acts of embezzlement as the state could; but the insistence is upon the point we are now considering, the refusal of the court to compel the district attorney to elect as to which single one of all these different
We have most carefully gone through the record with respect to each of the other assignments of error, and have particularly examined the charges for the state in view of the criticisms made of them. What we have just said upon the action of the court in refusing to compel the district attorney to elect, and in setting forth our view of the meaning and purpose of sec. 1058, applies perfectly in answer to the criticisms of the instructions for the state. We deem it unnecessary to protract this opinion further by a specific examination of each of the other assignments of error. Suffice it to say that we are fully satisfied that there was no reversible error shown in this record, and that the defendant has not been prejudiced by any of the rulings complained of.
Wherefore the judgment is affirmed.