11 N.H. 37 | Superior Court of New Hampshire | 1840
In this case it is argued that the indictment charges two distinct, substantive offences, burglary and larceny; and the question arises, whether the indictment is bad for duplicity.
It is well settled, as a general rule, that two offences cannot be charged in the same count in an indictment. Archb. Crim. Pl. 25; State vs. Nelson, 8 N. H. Rep. 163. This is an important rule, both to the prisoner and the public. Criminal charges should be so alleged, that the prisoner may know precisely against what he is to defend, and that the attention of the jury may not be distracted by a consideration of various issues; and the fifteenth article of the Bill of Rights has provided a safeguard for the accused, by requiring that the crime or offence shall be “ fully and plainly, substantially and formally described to him.” But to this rale there are certain exceptions, the tendency of which is not to embarrass the prisoner in his defence, nor to distract the minds of the jury, but to ensure the conviction of the guilty, while the necessity of more than one trial is avoided.
The form adopted in the indictment before us is recommended by very high authority, and is universally given in the precedents.: A similar indictment may be found in 1 Stark. Crim. Pl. (2d ed.) 39; Davis's Precedents of Indictments 81; 3 Chit. Cr. L. 1100.
Lord Hale advises that the indictment should charge a burglarious entry, with intent to steal; and then an actual burglarious stealing, as if no intent had been previously alleged, on which, if the theft be unsupported, the defendant may still be convicted on his evil intention. 1 Hale P. C. 560.
In the case of Commonwealth vs. Tuck, 20 Pick. 356, this question was discussed and settled. The prisoner was indicted for breaking, and entering,and stealing; and it was moved, in arrest of judgment, that the indictment was bad, for duplicity. But it was held, not only that the indictment was unobjectionable, but that, even if it were bad for duplicity, the objection came too late. Mr. Justice Morton, in delivering the judgment of the court, says : “ An indictment setting forth that the defendant broke and entered, with intent to steal, would be good. Can the addition of the fact that he did steal, which is the best evidence of his intention, vitiate the indictment? We cannot perceive that it does.” And in Archbold’s Crim. Pl. 25, it is said that in indictments for burglary it is usual to charge the defendant with breaking and entering with intent to commit a felony, and also with having committed a felony. The same principle appears to be recognized in the case of Commonwealth vs. Eaton, 15 Pick. 273. The statute imposed a penalty upon any person who “ shall sell or offer for sale” any lottery ticket. The indictment alleged that the defendant “ did unlawfully offer for sale, and did unlawfully sell” one half of a lottery ticket. Upon demurrer, on the ground of duplicity, the indictment was held sufficient; for, although offering to sell is an offence, yet offering to sell, and actually selling, are but one offence, and every sale includes an offer to sell.
A general rule applicable to cases of this character is stated in The State vs. Nelson, 8 N. H. Rep. 163, as follows: “ There are cases in which a single count in an indictment may allege all the circumstances necessary to constitute two
We are, therefore, of opinion that the motion in arrest of judgment must be overruled, and that there must be
Judgment on the verdict.
