82 A. 536 | N.H. | 1912
The state relies upon the statute to justify the form of presentment in the first indictment. "In an indictment for an offence mentioned in the two preceding sections, it shall be sufficient to allege that the offender embezzled or converted to his own use property to a certain amount, without specifying any particulars of the embezzlement, and, on the trial, evidence that any property described in the preceding sections, to any amount, has been embezzled . . . shall be sufficient to support the indictment." P. S., c. 273, s. 18. The preceding sections referred to relate to embezzlement of certain specified things and "any . . . other effects or property whatever" of the principal. Ib., ss. 16, 17. The indictment is not more general than the statute; and the question presented is whether the statute violates the provision in the bill of rights that "no subject shall be held to answer for any crime or offence until the same is fully and plainly, substantially and formally, described to him." Bill of Rights, art. 15. *310
The statute was introduced into the legislature as a part of the commissioners' report in 1867. Comm'rs' Rep. G. S., c. 258, s. 9. The suggestion for it was found in the Massachusetts act of 1834; but that act only provided that bank notes and securities for money (checks, bills of exchange, and the like) might be described in the indictment merely as money. Mass. R. S., c. 133, s. 10. While the constitutionality of this provision, so far as it relates to things not commonly known as money, has been questioned (Brown v. People,
Whether the statute under consideration is wholly unconstitutional, is a question not here involved. But the particular provision relied upon by the prosecution is so plainly in conflict with article 15 of the bill of rights that it must be held to be invalid. The power of the legislature to simplify criminal pleading and to do away with non-essentials is unquestioned. State v. Adams,
In the second indictment, the property embezzled is described as "furs of various kinds, of the value of six hundred and ninety-five dollars." To this allegation the same objection is made, and the question is whether this is a sufficient averment of what property was stolen.
The crime of embezzlement is of statutory origin, and was denounced to overcome the deficiency of the common law, wherein stealing was punished as larceny only when there was a wrongful taking. The offence thus made penal is largely of the nature of *311 larceny, and so far as the larcenous element enters into it the law upon that subject applies. Hence it follows that if the description here employed would be insufficient in an indictment for larceny it is insufficient in this indictment for embezzlement.
That the description would be insufficient in an indictment for larceny is well settled by the authorities. No reason is stated why the "furs of various kinds" could not have been more fully described, and it is apparent that a more particular description of what the property was would be of substantial benefit to the accused. The description of the property closely resembles that given in Hamblett v. State,
Exceptions sustained.
All concurred.