46 N.H. 186 | N.H. | 1865
The indictment ought to state the value of the articles stolen that it may appear whether the offence be grand or petit larceny, and such Ave believe is the settled practice.
By our statutes, as it is elsewhere, the extent and character of the punishment is made to depend upon the value of the things stolen: if of twenty dollars value, by confinement in the state prison; if less, by imprisonment in the common jail, and by fine; so that the same reason which originally dictated tire rule applies in its full force here.
In 2 Ch. Cr. Law *948, it is laid down that the value must be expressed, in order that it may appear on the face of the record whether the offence is grand or petit larceny, and so is 2 East Crown Law 778, citing 2 Hale 183 ; and the same doctrine is found in Wharton’s Cr. Latv 571, and cases cited.
In Hope v. Commonwealth, 9 Met. 134, it is held that the indictment must state the value of the articles stolen, and if there be several articles and the aggregate value alone be stated, and the jury find the respondent guilty of stealing only a part of them, the judgment, on error, will be reversed, and the same doctrine is found in Com. v. Smith & al., 1 Mass. 245.
Upon these authorities and also, upon principle, tve think the statement of value is material and matter of substance; Avithout Avhich the indictment would be bad after verdict, and the judgment would be arrested, or would be reversed on error.
To constitute an indictment for grand larceny it is quite clear that the goods must be alleged to be of the value of twenty dollars, and it would be contrary to all the rules of criminal trials to convict a respondent of a higher crime than is charged in the indictment. It has been held in some jurisdictions, that, in case no value is alleged, the offence charged may be regarded as 'simple larceny, and a conviction be had according
The remaining question is, whether an amendment of the indictment by a statement of the value of the goods stolen comes within the provisions of the law of July 3, 1863, Pamphlet Laws, ch. 2724.
This provision is copied substantially from the Revised Statutes, ch. 186, sec. 10, applicable to civil cases only, and, as held by our courts, to matters of form alone. Berry v. Osborn, 28 N. H. 279. By section 11 of the same statute, provision is made for amendments in matter of substance.
The inquiry, then, turns upon the point whether the amendment here is matter of form or substance, and, from what has already been seen, it is quite clear that it is matter of substance, and therefore cannot be amended.. The character of the offence, whether grand or simple larceny, depends upon the value of the things stolen, and it is obviously for the grand jury to determine that point. Should the court direct an amendment so as to make it a charge for grand larceny, the respondent would be put upon trial for an offence of which he has not been accused by the grand jury.
With these views the demurrer must be sustained, and there must be
Judgment for the defendant.
