State of Tenn. v. Cornellison
59 S.W.2d 514
Tenn.
1933
Check Treatment
Mr. Justice Chambliss

delivered the opinion of the Court.

This case is here on appeal by the State from a judgment of the Circuit Court sustaining motions to quash three indictments, each charging the larceny of the articles described in the several indictments, each of the indictments containing a second count charging receiving and concealing the same personal property described in the first counts.

The validity of the indictments is challenged for the defendant chiefly on the theory that the property alleged to have been stolen is insufficiently described to such an extent as that the defendant is not given that notice of the nature and cause of the accusation against him which is contemplated by our constitutiоn.

Incidentally, it is insisted that the indictments are deficient in failing to set forth with proper exactness the time and place of the commission of the alleged offenses; also, in failing to fix a valuation on each of the several articles of property included in the indictment, the draftsman having stated a total value at the end of each count *108 of the various articles listed in said count. An averment of aggregate value was approvеd in State v. Shelton, 90 Tenn., 539.

It appears from an examination of the three indictments that the time is set out in the first as “On the — day of February, 1931, and prior to the finding of this indictment.” (The indictments were found at the May term, 1931). In the second the same language is used, but the blank is fillеd in to read “On the 12th day of February, 1931; ’ ’ and in the third the language is identical with that in the first, except that the word “January” is substituted for the word “February.” This is clearly sufficient-under our statute (Shannon’s Code, 7087) and our cases. Bolton v. State, 5 Cold., 651; State v. Donaldson, 3 Heisk., 49. Of course, it is well settled that no averment of the value of the property which is the object of the criminal ‍​​​‌​‌‌​​‌‌​‌‌​‌‌‌​​‌‌‌​​​‌‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​‌‍offense charged is necessary, unless value enters into the degree of crime, or determines the punishment. Ayres v. State, 115 Tenn., 722. In the instant case the aggregate value of the articles included in the first indictment is stated to be- $69.50; in the second $193.63 and in the third $107.76, different articles being enumerated in each indictment.

Passing now to what is the main insistence for the defendant, ably and plausibly presented, it may bе said that three controlling elements must be given application in passing on the sufficiency of the description of the person or thing denominated in the indictment as the objective of the offense charged. The desсription contained in the first indictment, illustrative of the issue under discussion, is, “One Ford Generator armature, one Carbosolve valva, one hag cleaning material, and steel tape measure, four shock absorbers and fittings, one me- *109 chanieal jack, one box distributor points and raters and motor brushes, of the value of Sixty-nine and 50/100 ($69.50) Dollars.”

1. In the first place, our State statutes have effected a simplification of tbe common law rules touching the fоrm and phraseology of indictments. In State v. Donaldson, 3 Heisk., 48, Judge Deaderick called attention to some of the strict requirements of the common law and noted that these well established rules of criminal pleading had been materially changеd by our Tennessee statute, brought into Shannon’s Code as Sections 7077, 7080, 7083.

2. Moreover, the modern tendency is toward simplicity in pleading, and particularly ‍​​​‌​‌‌​​‌‌​‌‌​‌‌‌​​‌‌‌​​​‌‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​‌‍in criminal pleading. As said by Mr. Justice StjtheklaND in the recent case of Hagner et al. v. U. S., 285 U. S., 427, 76 L. Ed., 861, “The rigor of old common law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded. The true test of the sufficiency of an indictment is not whether it сould have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet, and, in сase any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ Cochran and Sayre v. United States, 157 U. S., 286, 290; Rosen v. United States, 161 U. S., 29, 34.”

And Mr. Justice McKinney, of this Cоurt, in the course of his opinion in Jordan v. State, 156 Tenn., 509, well expressed this view: “In State v. Pearce, 7 Tenn., 67, decided more than one hundred years ago, a history of the reason for the strictness required in indictments *110 was detailed, and it was pointed ont that the reason therefore no longer existed. And in subsequent decisions reference has frequently been made to the growing inclination of this court to escape from the embarrassment of technicalities that are empty and without reason, and tend to defeat law and right. Givens v. State, 103 Tenn., 652, and cases there cited.”

3. With particular application to the point herein made of alleged indefiniteness in identification of the denominated objects of the offenses charged, to-wit, (1) larceny, and (2) concealing, a distinction is to bе taken between the description required in the indictment and that required in the proof, general or class identity being sufficient to be shown in the indictment, while in the proof individual or specific identification is requisite to convictiоn. Learned counsel for defendant appear to have overlooked this fundamental distinction.

By way of illustration, a charge that A stole from B a “horse,” an animal of that general class, is good as a descriptivе charge in the indictment, putting A on notice of the nature of the charge ‍​​​‌​‌‌​​‌‌​‌‌​‌‌‌​​‌‌‌​​​‌‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​‌‍(larceny), and of the particular crime of which he is accused; but to convict the proof must go further and establish the identity of a certain horse as the stolen property of B. As said in State v. Stephens, 127 Tenn., at page 287, quoting from Pyland v. State, 4 Sneed, 357, “the particular circumstances of description and of identification necessary to make out the case are matters of proof. ’ ’ The maxim “that is certain which can be made certain” has application.

This distinction in principle thus stated between that definiteness in identification required in the averment and that required in the proof was announced in this State *111 by Judge Whyte in tbe early case of Pearce v. State, Peck, 66, in tbis language: “That degree of precision in tbe description of an offence cannot be given in tbe indictment so as to distinguish it per se from all other cases of a similar nature; such a discrimination amounting to identification must rest in averment, and its absence in dеscription can be no test of tbe certainty re-, quired either for defence against tbe present or protection against a future prosecution for tbe same matter. But that certainty only is necessary that will enаble a jury to decide in tbe case of theft, whether tbe chattel proved to have been stolen is tbe very same with that upon which tbe indictment is founded, and show judicially to tbe Court that it could have been tbe subject-matter of tbe offence charged. Tbis will secure the defendant from future prosecution for tbe same offence after acquittal or conviction. See 1 Chitty, 235-6.”

In Jordan v. State, supra, tbis statement was approved, and State v. Cameron, 50 Tenn., 86; Millner v. State, 83 Tenn., 181; and State v. Stephens, 127 Tenn., 285, were cited as to tbe same effect.

Indeed, tbe attempt of tbe draftsman of tbe indictment to be speсific in description frequently results in a fatal variance when tbe proof is in.

Holding, in Turner v. State, 3 Heisk., 152, that it is wholly unnecessary to charge that tbe horse stolen is of a certain color or sex, it is said that, if however a certain color or sex is аlleged, then tbe proof must conform thereto. Tbe reason is that otherwise tbe notice ‍​​​‌​‌‌​​‌‌​‌‌​‌‌‌​​‌‌‌​​​‌‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​‌‍to tbe accused, essential to bis defense, becomes affirmatively misleading. In that case it was a mule that, was tbe object оf tbe alleged larceny. " Tbe indictment described tbe animal as “one bay mare mule.” Tbe court reversed *112 because the proof tended to show that the particular mule was of a different'color, but the court said that “it would have been sufficient to have described the subject of the larceny simply as a mule.” This is an illustration of what has heretofore been said, namely, that it is only necessary for the purposes of the indictment that the animal or article alleged to have been stolen be described as one of a kind or class named, susceptible of individual or specific identification by proof.

In the course of his opinion in State v. Pearce, supra, (the indictment in that case describing the animal only as “one horse beast”), Judge Whyte thus reasons, quite pertinently: “What capacity is it, I ask, short of that imbecility to which the law will not impute a crime, that will not understand what is meant by killing a horse beast? is the expression of killing a black gelding more intеlligent, or would the descriptive adjuncts of black, gray, etc., showing color, admitted by the argument to be sufficient, constitute any real difference? Will not the most ordinary and common capacity comprehend that the killing imрuted to him by this, of horse beast, is of an individual of the horse kind, which I shall show presently is all the law requires, as contradistinguished from an individual of the cow kind, or any other kind of beast within the purview of this Act. It is not to be expected that the identity оf the beast killed can be ascertained by description alone, when the beast is not the only one of the kind, but one of many of the same kind. ’ ’

Ayres v. State, 115 Tenn., 722, was a conviction for arson. The ground of the motion to quash was insufficiency in desсription of the property burned, in that it was charged only that it was “situated in the City of Nash-yille.” Sustaining the indictment, Mr. Justice Beard, *113 speaking for this Court, said, It is enough. ... to allege that the building burned is within the jurisdiction of the court, ’ ’ and he cites cases holding that descriptions such as “a certain barn,” and “a certain store house building,” in a named state and county, are sufficient. The notice afforded the accused by the descriptions in these cases was that he was charged with burning one of a class of property, to-wit, a building, located within a certain area, that is, Within the jurisdiction of the court, and it was left to the proof to identify the particular building and show its ownership in the party named in the indictmеnt.

Giving application to these principles, without distinguishing or discussing the numerous eases relied on in the comprehensive briefs of counsel on both sides, we are satisfied that the indictments in this record sufficiently informed the defendant оf the nature and cause of the accusation against him so as to enable him to prepare his defense. While it is true, as contended, that the description, “one Ford Generator Armature,” by way of illustration, is not sufficient to so identify the article as to distinguish it from other Ford Generator Armatures, on the hearing it will be encumbent upon the State to prove that this particular Ford Generator Armature was the property of the Tennessee Auto Sеrvice Company and was stolen by this defendant. He is on very clear notice that he is accused of having stolen, on a day in February, 1931, from the Tennessee Auto Service Company, one Ford Generator Armature. Certainly nо further notice is needed to enable him to prepare to defend this charge. As said by Me. Justice SuthebiaNd, supra, “the true test of the sufficiency of an indictment is not whether ‍​​​‌​‌‌​​‌‌​‌‌​‌‌‌​​‌‌‌​​​‌‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​‌‍it could have been made more definite and certain, but *114 whether it contains the elements of the offense intended to he charged.” The rights of the accused are always to he observed and the courts should be careful to see to it that no injustice is done him, hut the time has long pаssed when offenders may he permitted to escape more “by the ever easy ear given to exceptions to indictments, than by the manifestation of their innocence, ’ ’ and when crimes are permitted to go “unpunished by reason of these unseemly niceties.”

Reversed and remanded.