11 S.E. 377 | N.C. | 1890
The second count is a copy of the first, except that it alleges authority to receive "promissory notes, bonds and obligations to pay" of the sum of ten dollars each executed by W. D. Fuller and others named in the first count, instead of "moneys," as charged in the first count, and the receipt of the same and embezzlement thereof as charged in the first count.
The third count is a duplicate of the first, except that it charges E. L. Harris instead of E. L. Harris and W. N. Harris.
The fourth count is a duplicate of the second, except that it charges E. L. Harris alone.
The fifth charges that E. L. Harris and W. N. Harris were copartners, trading in the name and style of Harris Son, and their agency and the embezzlement of the moneys, promissory notes, bonds, obligations to pay the embezzlement thereof, all as set out in previous counts. With these variations, the last four counts are a copy (685) of the first count, which is substantially set out above. The defendants demur to the indictment as defective for misjoinder, duplicity and insufficiency, in that:
1. In the first, second and fifth counts the offense is charged to have been committed by E. L. Harris and W. N. Harris, and these counts are joined with third and fourth counts, charging the offense to have been committed by E. L. Harris, and this is bad for misjoinder.
2. That each count charges the two separate and distinct offenses, larceny and embezzlement, and is bad for duplicity.
3. That the indictment charges several distinct offenses.
4. That it is not alleged in what county the offense was committed.
5. That the offense is not alleged to have been committed with force and arms.
6. That the indictment wrongfully concluded contra formam statuti.
First. The different counts in the bill are statements in different forms of the same embezzlement varied to meet the different possible phases of the testimony. We do not see any object to be obtained by the counts charging E. L. Harris alone, for if the evidence justified his conviction alone, and not that of W. N. Harris also, he could have been *528
convicted under the count charging him jointly with another, though the other should be acquitted, but we see no harm which could (686) accrue either to him or the other defendant by a count which is mere surplusage, for it is included and embraced in the other counts. This is different from S. v. Hall,
Second. The defendant's counsel filed a brief, which, if correct, would cure the second ground of demurrer, as they insist that the charge is not sufficient in law as a charge for larceny. If so, there remains only the charge for embezzlement and utile per inutile non vitiatur. But it is not necessary to consider the correctness of defendant's views on that point, for while the joining of two separate offenses in the same count is bad for duplicity (S. v. Cooper,
Third. An indictment containing several counts, describing the same transaction in different ways, is unobjectionable (Ashe, J., in S. v.Reel,
Fourth. Each count begins: "The jurors for the State, upon their oath, present that, on the first day of January, 1888, at and in said county of Granville, E. L. Harris," etc. This qualifies and applies to the whole allegation in such count. To hold that it only applied to the first paragraph, or first sentence, would be to exact much "vain repetition." To sustain the demurrer on such ground would ignore the plain provisions of The Code, sec. 1183, which provides: "Every criminal proceeding, by warrant, indictment, information or impeachment, shall be sufficient in form for all intents and purposes, if it expresses the charge against the defendant in a plain, intelligible and explicit manner, and the same shallnot be quashed, nor the judgment thereon stayed, by reason of anyinformality or refinement, if, in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment."
Fifth. As to the omission of the words "with force and arms," sixty years ago Chief Justice Ruffin, in S. v. Moses, 2 Dev., 452, said that those words have been "superfluous since the Statute 37, Henry VIII. We are as much bound to dispense with unnecessary and immaterial averments, when permitted by the statute, as if commanded by it, and if the one in question be not of that character, it is difficult to say to what unseemly nicety (as Lord Hale calls it), formality (688)or refinement the act can extend." In S. v. Duncan, 6 Ired., 236, which, like the case just cited, was an indictment for murder, the Court reiterates that the words "force and arms" are mere surplusage. The Statute 37, Henry VIII, was passed in the year 1546. It would seem that this point should be held as settled. The statute is set out in Whart. Cr. Pl. and Pr., sec. 271, and the learned author says that even prior thereto these words were never necessary in a charge like this, where no actual force was used.
Sixth. The defendant has as little cause to complain that the indictment concludes against the form of the statute as for the omission of the words "with force and arms." Neither is calculated to mislead or prejudice him in the slightest degree. The decisions that the mere formal conclusion to an indictment are immaterial are collected and the principle reaffirmed in S.v. Kirkman,
In S. v. Smith,
In S. v. Moses, supra, Chief Justice Ruffin says: "This law (referring to what is now The Code, sec. 1183) was certainly designed to uphold the execution of public justice by freeing the courts from those fetters of form, technicality and refinement, which do not concern the substance of the charge and the proof to support it." The reports (689) are full of similar decisions. The legislative intent to cure the evil is clearly expressed in The Code, secs. 1183, 1189, 1194, and many similar statutes. These technicalities and refinements doubtless originated in the humanity of the courts at a time when defendants on trial for the gravest offenses were not permitted the benefit of counsel, nor allowed to have witnesses sworn in their behalf. 4 Bl., 459. They are an anachronism now. Their survival and occasional reappearance, after so many statutes and so many decisions, and when the reason for them and a knowledge of their origin even has passed away, is without a parallel, unless it is in the fact that our time-pieces still mark the fourth hour with IIII, which we are told, is due to the fact that the King of France, to whom the first watch was carried, unable to understand its mechanism, criticized the IV and ordered it replaced by the letters which, with Chinese exactness of imitation, are used by us today.
They do no harm. But to sustain obsolete technicalities in indictments will be to waste the time of the courts, needlessly increase their expense to the public, multiply trials, and, in some instances, would permit defendants to evade punishment who could not escape upon a trial on the merits. If it has not the last mentioned result, it is no advantage to defendants to resort to technicalities, and, if it has such effect, the courts should repress, as they do, a reliance upon them.
There are cases where defects in an indictment or a civil pleading are matters of substance, and objection should be insisted on by the parties and sustained by the courts. But the letter and the spirit of legislation, both as to criminal and civil pleading, require only a plain and clear statement of the matters alleged, and when the objection to such statement is not substantial, but rests upon mere technicalities and refinements, it would be better for the party to disregard them and (690) go to trial upon the merits, if he has any to set up and rely on.
The judgment must be set aside, and the cause remanded for further proceedings in conformity to this opinion.
Error.
Cited: S. v. Perdue,