185 P. 556 | Mont. | 1919
delivered the opinion of the court.
An information was filed against the defendant below, under Chapter 11 of the Laws of the Fifteenth Extraordinary Session of the Legislative Assembly of 1918. His demurrer to the information was overruled, a trial had, and judgment of .conviction followed. The appeal is from the judgment.
Appellant contends that the overruling of his demurrer, the overruling of his objection to the introduction of any testimony upon the trial, and the denial of his motion in arrest of judgment, were all reversible errors. If the information fails to state a public offense under said Act, the result must be a reversal of the judgment.
The charging part of the information is as follows: “The said Harry Peter Wolf on or about the 2d day of August, A. D. 1918, at the county of Beaverhead, state of Montana, and at a time when the United States was engaged in war, did then and there knowingly, unlawfully and feloniously utter and publish disloyal, profane, violent, scurrilous, contemptuous, slurring and abusive language about the soldiers of the United States and the uniform of the army of the United States, and language calculated to bring the soldiers of the United States and
Appellant insists that, in this state of the pleadings, he is
As will presently be seen, our Code provisions (secs. 9147, 9149) are but a paraphrase of the common-law rules covering the requisites of criminal pleading involved here. Section 9147 provides that the indictment or information must contain “a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” Section 9149: ‘ ‘ The indictment or information must be direct and certain, as it regards: (1) The party charged. (2) The offense -charged. (3) The particular circumstances of the offense charged, when they are necessary to constitute a complete offense. ’ ’ This court has said that an information good at common law is good under the statute. (Territory v. Young, 5 Mont. 242, 5 Pac. 248; State v. Lu Sing, 34 Mont. 31, 9 Ann. Cas. 344, 85 Pac. 521.) At common law the rule is that where the definition of the offense contains generic terms, it is not sufficient to allege the species of the crime, but the pleader must descend to particulars. (Bowles v. State, 13 Ind. 427; Malone v. State, 14 Ind. 219; State v. Bruner, 111 Ind. 98, 12 N. E. 103; United
Sergeant Hawkins, in Ms Pleas of the Crown, eighth edition,
In the tenth edition of Wharton’s Criminal Procedure, section 251, volume 1, the rule is stated thus: “Where words are the gist of the offense, they must be set forth in the indictment with the same particularity as libel; as, for instance, in an indictment for scandalous or contemptuous words spoken to a magistrate in the execution of his office, or for blasphemous, or seditious or obscene or abusive words, or for perjury.” See, also, the opinions of the United States circuit court of appeals for the ninth circuit, in the cases of Foster v. United States,
As declared by Mr. Bishop, in 1 Criminal Procedure, fourth edition, section 331: “The facts in allegation must be the primary and individualizing ones.” Moreover, section 16 of Article III of our Constitution guarantees the defendant in all criminal cases the right, upon demand, to be informed of the nature and cause of the accusation. The nature of the thing, as required in that instrument, is its essential character — the attributes that make the thing it is, distinct from others.
A general allegation, such as the one now before us, reveals none of the ingredients of the particular act to distinguish it from any of the many acts denounced in the statute. The charging part of the information is not even what it purports to be — a literal statement of the words of the statute. It is couched in such general terms as to cover several distinct matters for which punishment may be inflicted. Words particularizing the offense are wanting, and we are left unable to visualize the effect of its averments, or to determine their sufficiency to carry the stigma ascribed to them by the pleader.
The gravamen of the charge is the use of language
The constitutional and statutory guaranties heretofore adverted to, requiring direct and certain allegations in criminal pleadings, are merely declaratory of the ancient common-law rule that no one shall be held to answer an information or indictment, unless the crime be charged with precision and fullness, to the end that the defendant may have ample opportunity to make his defense and avail himself of his conviction or acquittal in a subsequent proceeding for the same offense. Further than that, it is essential that the particular offense be adequately identified and charged in such a manner as to enable the court to determine its sufficiency in law to constitute the offense prohibited by the statute.
Reversed.