State v. Thompson, 10 Mont. 549

10 Mont. 549 | Mont. | 1891

De Witt, J.

’The first question which we meet is whether, under our statute, section 166 of the Criminal Practice Act, the allegation of time, “on or about the twelfth day of April, A. D. 1889,” is sufficient. The obnoxious words, in appellant’s view, are “on or about.” Appellant argues that a single certain day must be laid in the indictment, although the proot is sufficient if it bring the offense within the Statute of Limitations.

Appellant cites from Archbold’s Criminal Pleading and Practice, page 275: “Formerly, the indictment must have stated, either expressly or by way of reference, the day, month, and year on which each material fact stated in it took place; otherwise the indictment would be bad.” He refers us to Wharton’s American Criminal Law, section 261: “ Time and place must be attached to every material fact averred, but the time of committing an offense (except where the time enters into the nature of the offense) may be laid on any day previous to the finding of the bill, during the period within which it may be prosecuted.”

He cites Judge Deady, district of Oregon, in United States v. Winslow, 3 Sawy. 337, as follows: “Every indictment must allege a day and a year certain on which the offense was committed. (1 Bishop on Criminal Law, § 239.) This is the common-law rule. The Code of Criminal Procedure of this State, which has been adopted by this court as a rule of practice, does not change the law. On the contrary, the form of an indictment given in section 70 indicates an absolute averment as to the time of committing the offense. An allegation that a crime was committed 'on or about’ a certain day does not show but the action is barred by the lapse of time.”

Consulting the Criminal Code of Oregon, to which Judge Deady refers, we find that section 70 gives a form of indictment in which the required allegation of time is set out in the following words: “The said A. B., on the - day of-•, 18 — .” As Judge Deady says, the form indicates an absolute averment as to the time of committing the offense. But, on the contrary, the statute of this State does seem to change the common-law rule. Instead of indicating an absolute averment of time, it says that the precise time need not be stated.

Appellant cites Roberts v. State, 19 Ala. 526. But in that case the indictment stated no time whatever. The same is true in Irvin v. State, 13 Mo. 306. People v. Lafuente, 6 Cal. 202, presented by appellant as authority, simply holds that “a particular day having been laid on which the offense is charged to have been committed anterior to the finding of the indictment, there is no necessity for an averment that the crime was committed before the bringing of the indictment.” Another ease is State v. Hanson, 39 Me. 337, wherein the averment of the indictment was that the defendant appeared before the court, during a certain term named, and there made false answers, without stating any month, or day of the month during that term, when those answers were made. The prosecution was for perjury, and the indictment was held to be defective in not stating time.

We have referred to these cases which appellant has pressed upon our consideration as authority for his position that the allegation “on or about” is insufficient, in order to show that none of them are in point upon the construction of our statute. (§ 166, Crim. Prac. Act.)

On the other hand, there is satisfactory authority construing statutes similar to ours, to the effect that the words “on or about” are sufficient. Counsel might have gone further in Archibald’s Criminal Pleading and Practice, page 278, where that author says: “But now, by stat. 14 & 15 Viet. c. 100, section 24, no indictment for any offense shall be liolden insufficient ‘for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense,’ etc.” It appears that even in the birthplace of the common law, the rigors of its construction have been modified. Mr. Wharton, whom appellant cites as holding the position which he advocates, says in a later section of the same work, section 266, that the words “on or about” were held to be surplusage, and refers to Indiana cases construing a statute similar to ours, which cases we cite further on. Mr. Bishop (Criminal Practice, § 242) says: “Where the time is set down as ‘on or about’ the day mentioned, the allegation is insufficient. Yet in some of the States there are statutes by force of which this form becomes adequate,” citing Cokely v. State, 4 Iowa, 477; People v. Aro, 6 Cal. 207; 65 Am. Dec. 503; Hampton v. State, 8 Ind. 336; Hardebeck v. State, 10 Ind. 459.

In the case at bar it is not contended that time is an indispensable ingredient of the offense. The matter is as well put in Hampton v. State, 8 Ind. 336, as in any other case, where the statute construed is practically identical with that of this State. This case is approved in Farrell v. State, 45 Ind. 373. To the same effect see People v. Littlefield, 5 Cal. 355, and State v. Harp, 31 Kan. 498, in which are collected the following cases, which we have examined with satisfaction: State v. Tuller, 34 Conn. 280; People v. Kelly, 6 Cal. 210; State v. Elliot, 34 Tex. 148, and other cases above cited. In Rawson v. State, 19 Conn. 291, is an instructive discussion of the strictness of the common law in construing indictments, and the reason for the modern modification for that strictness.

In point at this place is section 171 of the Criminal Practice Act, which provides: “No indictment shall be quashed or set aside for any of the following defects/’ among others^ “ for any surplusage or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged, or for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.”

We fully agree with the cases which have construed statutes similar to our sections 166 and 171, and are of the opinion that any other view than that the words “on or about” a certain day do not vitiate the indictment, would be to declare that those statutes are idle and meaningless words.

2d. It is contended that the court erred in not holding, as a matter of law without submitting it to the jury, that the name “Ellen Souderland,” as found in the indictment, was not idem sonans with the name of the injured person as proved on the trial.

We understand, from a review of the authorities, that the rule is, that if the question of idem sonans arises on demurrer, it is for the court, but if on an issue of fact, it is for the jury. “The question of whether one name is idem sonans with another is not a question of spelling, but of pronunciation, depending less upon rule than upon usage, which, when it arises in evidence on the general issue, is for the jury and not for the court, and was rightly submitted to the jury in this case.” (Commonw. v. Donovan, 13 Allen, 571.) In Commonw. v. Warren, a very recent case in the same court, 143 Mass. 568, we find the following language: “The province of the court and jury in cases like the present is governed by the following rule: If two names, spelled differently, necessarily sound alike, the court may, as matter of law, pronounce them to be idem sonans; but if they do *not- necessarily sound alike, the question whether they are idem sonans is a question of fact for the jury,” citing cases. So it would seem from this case, that if the names are necessarily pronounced in a certain manner, and there cannot possibly be any doubt as to their pronunciation, the question is one for the court. But where it is a question of fact, whether the names under consideration are idem sonans, and the matter arises on the issue, the question is for the jury. (See Wharton’s Criminal Evidence, 96; Wharton’s American Criminal Law, 597; Wharton’s Criminal Pleading and Practice, 119; Ward v. State, 28 Ala. 53; Barnes v. People, 18 Ill. 52; 65 Am. Dec. 699; Commonw. v. Mehan, 11 Gray, 321; Commonw. v. Jennings, 121 Mass. 47; 23 Am. Rep. 249; State v. Malia, 79 Me. 540; Underwood v. State, 72 Ala. 220; Schooler v. Asherst, 1 Litt. 216; 13 Am Dec. 232, and note; Donnel v. United States, 1 Morris, 141; 39 Am. Dec. 457; State v. Havely, 21 Mo. 498; Lawrence v. State, 59 Ala. 61; People v. Fick, 89 Cal. 14.)

Now as to the facts in the case at bar. The indictment reads ‘ Souderland.” The witnesses variously describe the woman as “Soderlund,” “Saderlund,” “Sonderlund,” and “Soederland.” The person bearing the name was a foreigner, a Swede. The sounds of the same characters, as letters, are widely different in different languages. The witnesses who gave the verbal pronunciations of the name, on the trial, were Swedes, and spoke with marked accents. The sounds which they uttered have not been absolutely preserved in the written record. We have no positive information as to the sounds which they gave to the vowels used in the name. We must rely upon the bill of exceptions which the judge certified who tried the case. From that it appears that the name was repeatedly pronounced. The judge could not say that the name as pronounced was idem sonans with the name in the indictment. He says that the difference in sound warranted him in submitting the matter to the jury. -This court cannot now hear the sounds. We cannot construct them from the recorded collection of letters, which have different sounds in well-spoken English, to say nothing of Swedishly accented English.

We are of opinion that the question is just such a one as should have gone to the jury, and that the District Court committed no error in so submitting it. Appellant refers us to State v. Sullivan, 9 Mont. 490. But that case was not decided upon the point made in the case at bar. In State v. Sullivan, the question of idem sonans was not submitted to the jury, and the action of the court in deciding that matter was not objected to or assigned as error.

3d. The plea of former conviction. The appellant to some extent renews the discussion had in the case, In re Thompson, 9 Mont. 388, wherein the petitioner was the same person who is herein the appellant. It may be appropriate to observe that in that hearing the petitioner contended that his conviction and imprisonment were illegal, because there had been no trial. Now he insists that the events of that trial were a former jeopardy. If a conviction, it must have been a trial. But we will not go into the events of that trial. We have not changed our views held on the habeas corpus hearing, which were that the petitioner there, the appellant here, had a trial. Whatever irregularities there occurred we did not inquire on the hearing of the writ. But it appears that the District Court took notice of the events on that trial, with the result that it granted defendant a new trial. Therefore the only proposition now before this court is whether a defendant once convicted, and obtaining a new trial, on his own motion, can plead the former conviction in bar to the second trial, which he has obtained.

The Constitution says that he shall not be twice put in jeopardy for the same offense. The statute declares that if a new trial be granted, he shall be in the same position as if no trial had ever been had. This constitutional and statutory provision is common to most of the States of the Union. The cases cited by appellant of discharge of a jury after the trial is commenced, and before completed, for reasons within or without the control of the court, on motion of the prosecutor or of the court’s own motion, are not in point in this investigation.

Again, the question of the conviction of a less degree of a graded crime being a bar to prosecution for the higher degree, is not in this case, and the authorities are not in point.

The real point in this appeal was summarily dismissed in Territory v. Hart, 7 Mont. 496. But the zeal and earnestness of counsel induce us to add a few of the innumerable authorities from other courts (People v. Webb, 38 Cal. 480; Jones v. Commonw. 20 Gratt. 848; People v. Gilmore, 4 Cal. 376; 60 Am. Dec. 620; People v. March, 6 Cal. 546; People v. Olwell, 28 Cal. 462; People v. Barrie, 49 Cal. 342; People v. Hardisson, 61 Cal. 379; People v. Schmidt, 64 Cal. 263; People v. Travers, 73 Cal. 580; State v. Rover, 10 Nev. 388; 21 Am. Rep. 745; State v. Knouse, 33 Iowa, 368; Johnson v. State, 29 Ark. 31; 21 Am. Rep. 154; Jones v. State, 55 Ga. 625; Lewis v. State, 1 Tex. App. 323; Stuart v. Commonw. 28 Gratt. 950; Veatch v. State, 60 Ind. 291; Smith v. State, 41 N. J. L. 598; State v. Stephens, 13 S. C. 285; Simco v. State, 9 Tex. App. 338; Kendall v. State, 65 Ala. 492; State v. Blaisdell, 59 N. H. 328; State v. Hart, 33 Kan. 218; Hohanan v. State, 18 Neb. 57; State v. Anderson, 89 Mo. 312; People v. Palmer, 109 N. Y. 413; Younger v. State, 2 W. Va. 579; 98 Am. Dec. 791); which are some of the cases which the industry of the county attorney has presented for our consideration, and we find laying down the principle as common learning and undisputed law. We do not consider the proposition as one open to discussion, and hold that the District Court committed no error.

The judgment is affirmed, and it is ordered that it be carried into effect as adjudged by the lower court.

Blake, C. J., and Harwood, J., concur.