34 Mont. 41 | Mont. | 1906
delivered the opinion of the court.
The defendant was, upon his plea of not guilty to an information charging him with murder, found guilty of murder in the first degree, and by the judgment of the court was condemned to death. He has appealed from the judgment and from an
The information, omitting formal parts, is as follows: “In the district court of the fourth judicial district, in and for Missoula county, Montana, on this 6th day of September, A. D. 1905, in the name and on behalf and by the authority of the state of Montana, K. F. W. Beesskove is accused by the county attorney of Missoula county, Montana, by this information of the crime of murder in the first degree, committed as follows: That said K. F. W. Beesskove did, on or about the 22d day of June, A. D. 1905, willfully, deliberately, feloniously, premeditatedly and of his malice aforethought, make an assault in and upon one William Burrig, and a certain gun then and there loaded with gun-powder and leaden ball, and by him the said K. F. W. Beesskove then and there had and held, he, the said K. F. W. Beesskove, did then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought,
The sufficiency of the information was not challenged by demurrer, nor during the trial by other appropriate method, the question now submitted being first presented in the case by motion in arrest of judgment. This course saved the adverse ruling for review by this court, however, if under the law the allegation of venue is jurisdictional, and if, further, it cannot be understood from the allegations in the information before us that the crime sought to be charged was committed in Missoula county.
It is well settled upon reason and authority that the circumstances of time and place are of the substance of the charge, though, as to the time, it is sufficient if it is charged that the offense was committed at a time prior to the finding of the indictment or the filing of the information. If the time is an essential ingredient of the offense, the allegation must be precise. This was the rule at common law (4 Blackstone’s Commentaries, 307), and has prevailed in the several states of the Union, except where by statute the specific allegation of venue has been declared not essential (State v. Shull, 40 Tenn. 42; Shannon’s Code, Tenn. 1896, sec. 7088), or where the venue stated in the margin or caption is declared sufficient after verdict (Nicholas v. People, 40 Ill. 395; State v. De Lay, 30 Mo. App. 357; State v. Simon, 50 Mo. 370). Mr. Bishop, in his text, declares this to be the rule and cites the cases generally
While in this state much of the particularity required at the common law has been dispensed with, and no defect or imperfection in form, which does not prejudice the substantial rights of the defendant, can affect a judgment of conviction (Penal Code, secs. 1812, 2600), still time and place are essential elements and must be so alleged as to enable a person of common understanding to know what is intended by the eharge (Penal Code, sec. 1832). This is apparent from the provisions of section 1811 of the Penal Code; for among them is the requirement that the indictment or information shall, with the exception stated, allege that the offense was committed within the jurisdiction of the court and at a time prior to the finding of the indictment or the filing of the information. If it be borne in mind that the common law is in force in this, state, except so far as it has been supplanted by oar Codes, the conclusion cannot be escaped that the provisions of the Penal Code cited (sections 1832,1811,1812), and others germane to the subject, while dispensing with mere matters of form, still require all the substantial allegations necessary under the common-law rule.
Does the information before us meet the requirements of this rule? The only mention of' the county is found in the caption in the description of the court in which, and of the officer by whom, the charge is preferred. In the charging part the word “county” is not used at all. The only reference words found there are in the expression “then and there.” The first of these evidently refers to the preceding date alleged as the date of the crime, while the other as clearly refers to some place where the defendant then was, the description or designation of which has been omitted. If such an expression as “in
Under the statute, the charge must be in ordinary and concise language, and so direct as to enable, not those of learning and experience, to understand it, but the man of ordinary understanding (section 1832, supra); for the purpose of the information is not only to state jurisdictional facts, but to inform a man of ordinary understanding what the charge is. We do not think that the information in this case meets these requirements, and therefore conclude that the district court was in error in not granting the motion in arrest of judgment. The result is that the judgment must be reversed, and the eause remanded for a new trial.
While there is some contrariety in the decisions of courts upon the question whether jurors should be heard to impeach their own verdict, we think reason and great weight of authority condemn the practice which permits it. (See 29 Am & Eng. Ency. of Law, 1008, 1009, with notes.) In any event it should not be tolerated further than the statute permits.
The judgment and order are reversed, and the district court is directed to grant the defendant a new trial.
Reversed and remanded.