97 A. 818 | R.I. | 1916
These are ten indictments for embezzlement against Jacob Irving Davis as principal and Alfred W. Quigg as accessory before the fact. They have already been before this court for the determination of certain questions raised by motions of the defendant Quigg to dismiss the indictments which questions were certified to this court under the provisions of Section 5 of Chapter 298 of the General Laws. The answers to these questions appear in the opinion of this court as reported in
After the papers in the cases were sent back to the Superior Court for further proceedings, the defendant Quigg then filed in each case a motion to quash the indictment as to him on the ground that Section 18 of Chapter 345 of the General Laws, under which all the indictments are drawn, is unconstitutional and void as being in violation of Article I, Section 10 of the Constitution of Rhode Island and of Section 1 of Article XIV of the Amendments to the Constitution of the United States.
"In this that —
"FIRST: Said statute authorizes the finding of the present indictment against the defendant in such general terms that it does not inform this defendant of the offence *279 for which he is to be tried and said statute does not provide any method by which this defendant can demand as a matter of right to be informed of the nature and cause of the accusation against him in said indictment.
"SECOND: Because said statute authorizes the finding of the present indictment against this defendant in such general terms that it does not inform him of the nature or cause of the accusation against him without provision being made in said statute or in any other statute that the defendant may as a matter of right demand such information by bill of particulars, or compulsory process, or otherwise.
"THIRD: Because an act of the court in forcing this defendant to proceed to trial upon this indictment before he is properly informed of the criminal act or acts for which he is to be tried thereunder is an act in violation of due process of law and against the law of the land and void."
Under the provisions of Section 1 of Chapter 298 of the General Laws, these questions have been certified to this court.
While the second ground by use of the words "without provision" following and in connection with a negative statement seems to be obscurely expressed, we assume that by omitting the words from "without" to "other statute," both inclusive, and inserting in place thereof the words "and neither it nor any other statute makes provision," we would have an expression of what is intended, and we so interpret the meaning of the "second" ground.
These grounds seem to involve these points, namely, that Section 18 of Chapter 345 of the General Laws violates Section 10 of Article I of our State Constitution in that (1) the defendant is not "informed of the nature and cause of the accusation" against him by the indictments drawn in accordance with said Section 18; (2) that there is no statutory provision by which he may as a matter of right demand to be so informed by bill of particulars or otherwise; and (3) that it is a violation of the "law of the land" clause of said Section 10 and also of the "due process of law" clause of *280
Section 1 of Article XIV of Amendments to the Constitution of the United States. They have reference only to the portion of the indictments charging the crime against the principal in so far as that is an essential part of the indictments against him as accessory. Section 18 of Chapter 345 of the General Laws is quoted in full in State v. Davis and Quigg,
Taking up the point relating to the information to be given as to the nature and cause of the accusation, the common law required that all the elements of, or facts necessary to, the crime charged should be fully and clearly set out in the indictment. In Bishop's New Criminal Procedure, Vol. 1, § 325, 2, the rule as to the certainty required in an indictment is thus stated: "It is that every fact in law essential to the punishment shall be plainly and directly stated in terms sufficiently minute and technical to identify the offence and the offender, disclosing prima facie guilt, but not necessarily anticipating any defence."
Our constitution requires no greater certainty in criminal pleading than the common law, and perhaps less. In State v.Murphy,
What are the essential elements of the crime of embezzlement ? In Roscoe's Criminal Evidence, 439, referring to a prosecution for embezzlement under Section 48 of Chapter 29 of 7 and 8 George IV (cited in State v. Davis and Quigg, supra, 385 as the prototype of our said Section 18) the author says "the prosecutor must prove 1st, that the prisoner *282
was a clerk or servant, or a person employed for the purpose or in the capacity of a clerk or servant, and that by virtue of such employment he received the money, etc.; 2d, that he received or took into his possession some chattel, money, or valuable security for or on account of his master; and 3d that he fraudulently embezzled the same, or some part thereof." It is obvious on inspection that all of these things necessary to be proved are clearly alleged in each indictment, namely, the fiduciary relation existing between Davis and the corporation employing him; that the property came into the possession of Davis by virtue of his said employment, that the property belonged to the employer of Davis and that Davis feloniously embezzled and fraudulently converted said property to his own use without the consent of the owner, his employer. Each indictment also states the value of the property embezzled and the place of embezzlement, thus showing that the crime is being prosecuted in the court having jurisdiction thereof, and in the proper county. Each indictment also alleges the time at which the offence was committed. Nevertheless, while a date must be named for the commission of the offence, yet when the time is not material, as it is not in most common law offences, the rule is that it need not be proved as laid, but some date before the finding of the indictment must be shown, and one within the period of the Statute of Limitations for finding the same, if such statute there be. 22 Cyc. 446; Bish. New Crim. Proc., Vol. I, § 400; Wharton's Crim. Pl. Pr., § 120; Rosc. Crim. Ev. 110. This rule of pleading applies to the statutory crime of embezzlement.State v. Cushing,
Has such constitutional right been violated by the provision of Section 18, first, in dispensing with the specifying of the particulars of the embezzlement and, second, by permitting at the trial of the giving of evidence of "any such embezzlement" committed within six months next after the time stated in the indictment ?" In most of the states having statutes practically identical with Section 18, the courts have held indictments for embezzlements drawn under them to apply only to a series of acts in the period of six months dealt with as constituting a single offence. Thus interpreted the constitutionality of these statutes in reference to provisions of their State Constitution, identical or similar to that of our own now considered, has been passed upon in several cases.
Com. v. Bennett,
In Thalheim v. The State of Florida,
In State v. Holmes,
State v. Bacon,
The second point is that there is no statutory provision by which as a matter of right an accused may demand a bill of particulars.
The object of a bill of particulars, in cases where the offence is charged in general terms, is to give information which will be of service to the accused in preparing for trial. But it is uniformly held that they do not supply defects in indictments. Some of the offences in which bills of particulars have been ordered are conspiracy, embezzlement, liquor selling, adultery, nuisance, criminal libel, barratry and common scold. See State
v. Tracey,
The application for a bill of particulars is unless otherwise provided by statute addressed to the judicial discretion, and *288
the court's decision is not generally reviewable by a higher tribunal. Bishop, supra, Section 643; Wharton, supra, Section 705. In referring to the subject of judicial discretion in general it is stated in 12 Cyc. 896: "In the absence of a clear abuse of discretion to the prejudice of the appellant, matters purely within the discretion of the trial court are not reviewable." And on the same page under "Indictment and Pleas" it is further stated as follows: "In applying the rule just stated the action of the trial court in passing upon the sufficiency of a complaint with respect to the description of the offence . . . in granting or refusing to grant a bill of particulars, . . . being matters wholly within the discretion of the court," is "not reviewable unless clearly erroneous and prejudicial to defendant." In State v. Hill,
It is to be observed that when the above-cited cases from Massachusetts, Michigan, Minnesota and Florida were decided in favor of the constitutionality of statutes similar to our own for the prosecution of embezzlement under constitutional provisions, identical or very like our own, there was no statute in any of those states requiring a court to grant motions for bills of particulars. The situation in that respect was the same as that now existing here. Language is used in People v. Hanaw,supra, 340, which might seem to imply the contrary. But the case itself cites no such statute, the defendant cites none and upon careful search we have not found any. The language referred to, therefore, must be otherwise interpreted. It seems to refer to the simplification in the form of the indictment permitted by statute. In none of those cases does the absence of such a statute appear to *289 have been considered as in any manner depriving an accused of an existing constitutional right. We do not think it does in the present cases. It is, of course, within legislative power to provide for a limiting of the judicial discretion of a trial court by providing for the review by a higher tribunal of its acts in the regulating of trials. Massachusetts seems to have done something of this kind in the act passed in 1899 providing that bills of particulars shall be ordered by the court in certain circumstances. See Section 39 of Chap. 218, R.L. Mass. 1902. But the passage of this act does not in any way weaken or affect the decision in Com. v. Bennett, supra, which has not to our knowledge been overruled or questioned.
But because our constitution in Section 7 of Art. I provides that "No person shall be held to answer for a capital or other infamous crime unless on presentment or indictment by a grand jury," and the constitutions of certain other states contain no similar provision, counsel for the defendant seem to regard the fact of this difference as having some bearing upon the determination of the question now before us. We do not think so. Bills of particulars have been ordered by courts under both forms of constitution, and under either form we think a legislature has the power to require them to be given. But if the absence of a constitutional provision like Section 7, supra, may have the effect of enlarging the legislative power in prescribing the manner in which a person shall be informed of the "nature and cause of the accusation" against him, for example, as to simplifying forms of indictments and enlarging the amount of information to be given by bills of particulars, questions may arise in consequence, which it is not our province to consider or decide. They are matters for the consideration of the courts of the states in which they arise.
The defendant's counsel seem also in a way to treat a bill of particulars as in effect an amendment of the indictment in matter of substance. Of course an indictment could thus be amended only by the grand jury which returned it or with *290
the consent of the accused under Section 4 of Chapter 354 of the General Laws. State v. McCarthy,
One other point may be considered on this question of charging the offence with certainty. One requirement is that the offence must be alleged in such form that the record of acquittal or conviction may be a good bar in case of a later indictment for the same offence. This requirement carries with it the right to have the indictment so framed that it can be made the foundation of the plea in bar. But as stated in Bishop's New Criminal Procedure, Vol. II, Section 544, "It is not the law that the first indictment shall be so distinct and minute as to constitute, without oral proof, a bar to a second. The identity of the two accusations must be shown by parol." See, also, same volume of Bishop, Sections 814 and 815 as to the essentials of such a plea and Section 816 as to what is necessary to be proved thereunder. Under the provisions of Section 3 of Chapter 278 of the General Laws requiring an official stenographic report of the proceedings of a criminal trial it becomes easy to ascertain with precision of what the accused was acquitted or convicted. In the present cases, as already stated, the indictments set out the essential elements of the crime of embezzlement, and thus furnish a sufficient foundation for a plea in bar of former jeopardy.
There remains for consideration the question of whether Section 18 of Chapter 345 and the indictments drawn thereunder are violations of that portion of Section 10 of Article I of our State Constitution which provides that an accused shall not "be deprived of life, liberty or property, unless by . . . the law of the land" and of that portion of Section 1 of Article XIV of the Amendments to the Constitution of the United States providing "nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law." The two expressions, "the law of the land" and "due process of law" are held to have the *291
same meaning. State v. Beswick,
We therefore decide that Section 18 of Chapter 345 of the General Laws and the ten indictments now before us drawn thereunder are not in violation of Section 10 of Article I of the Constitution of Rhode Island, or of Section 1 of Article XIV of the Amendments to the Constitution of the United States in the manner and on the grounds as stated in the motions to quash said indictments.
The papers in the ten cases will be sent back to the Superior Court for the counties of Providence and Bristol, with our decision certified thereon, for further proceedings.