State v. PanichasState v. Panichas
- Reporters:
- , ,
- Before:
- Blandin
The issue presented is whether the indictments informed the defendant of the nature and cause of the crimes with which he is charged with sufficient definiteness so that he can prepare for trial. State v. Rousten, 84 N. H. 140, 143; State v. Strescino, 106 N. H. 554, 557.
As to the first indictment, we noted in
State
v.
Mihoy,
98 N. H. 38, numerous authorities which agreed that “the present statutory law of burglary is in need of alteration.”
Id.,
41. We also said that the New Hampshire statute was one of the most complicated, citing 100 ,U. Pa. L. Rev. 411, 423.
State
v.
Mihoy, supra,
41. Even where the penalties for certain closely allied but separate offenses are the same (
The indictment before us which relates to the defendant’s aid in an attempted breaking, entering and burglary, refers to neither the applicable chapter nor any of its provisions, although the State urges that
“2. If any person shall, in the nighttime, break and enter any dwelling-house, office, bank, shop, store, or warehouse, or any vessel lying within the body of any county, with intent . . . to commit any larceny, he shall be imprisoned not more than fifteen years.
“3. If any person shall, in the nighttime, break or enter, or in the daytime break and enter, any building . . . and shall therein commit larceny, he shall be imprisoned not more than five years.
“4. If any person shall, in the nighttime, bréale or enter, or in the daytime break and enter, as described in the preceding section, with intent to commit any crime the punishment whereoif may be imprisonment for more than one year, or with the intent to commit any larceny, he shall be imprisoned not more than five years.”
It is undisputed that the indictment is not under section 3, but *361 the issue is whether it falls under section 2 or section 4. When we endeavor to fit the indictment into either section 2 or 4, problems immediately arise. If the purpose of the prosecution was to charge the defendant under section 2, there was no occasion to use the word “building.” If, on the other hand, the accusation was for violation of section 4, the combination of the two words, “store building,” served to create confusion. It obviously makes a great difference to the accused whether he is faced with a trial under section 4, where he may be imprisoned not more than five years, or under section 2, where he may be given thrice that amount of time, or fifteen years. Cf. State v. Tierney, 104 N. H. 408, 409.
We certainly do not wish to turn our criminal procedure into a search for technicalities (see State v. Ball, 101 N. H. 62, 63) rather than truth. However “It has long been the law in this jurisdiction that to meet constitutional requirements an indictment must inform the accused of the nature and cause of the accusation with sufficient definiteness so that he can prepare for trial. State v. Story, 97 N. H. 141, 146. It must allege ‘every element of the offense charged in language sufficiently definite to apprise the [defendant] of what [he] must be prepared to meet for trial.’ Id., 146.” State v. Superior Court, 106 N. H. 228, 232. It cannot fairly be denied that the defendant and his counselor, faced with the words “store building,” may be in doubt as to which section he is accused of violating. Judge Doe summed up the result which a court should reach in this situation and the reason for it in two short sentences: “The crime and penalty of the seventh section are different from those of the eighth. The indictment, not informing the defendant which crime he is charged with, is bad for uncertainty.” State v. Messenger, 58 N. H. 348. See also, State v. Leavitt, 63 N. H. 381; State v. Mealey, 100 N. H. 228, 232. We therefore hold that the indictment charging the defendant with being an accessory to an attempted burglary should have been dismissed. State v. Jane Doe, 104 N. H. 172.
The second indictment is brought under the statute, making it a crime to possess burglar’s tools under certain conditions, which reads as follows: “Whoever . . . knowingly has in his possession [a] . . . tool, or implement adapted and designed for cutting through, forcing, or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use
*362
or employ . . . same . . . for such purpose, shall be imprisoned not more than ten years . . . . ”
Generally an indictment is sufficient if it uses the words of the proper section of the applicable statute.
State
v.
Yell,
104 N. H. 87. The test of its sufficiency remains always the same: whether it gives the defendant enough information so that he can prepare for trial.
State
v.
Rousten,
84 N. H. 140, 143. Our statute (
The order is
Exceptions to first indictment sustained; exceptions to second indictment overruled.
All concurred.