133 P.2d 761 | Mont. | 1943
The information fails to state facts sufficient to constitute a public offense. Our contention, among others, briefly, as expressed in the decisions of the supreme courts of the states of Washington, Wisconsin, Utah, Oklahoma, Mississippi, Nebraska, South Dakota and Michigan, where the same question has been passed upon, is as follows: That practicing medicine without a license is a statutory offense, unknown at the common law; that the statute defines what shall constitute the practice of medicine, and that therefore the information must set forth facts, showing that the defendant did something coming within *187
the prohibition of the statute; that to merely allege that the defendant "unlawfully practiced medicine without a license" is a bare legal conclusion, not a statement of fact, and does not state a public offense. (See, State v. Carey, (Wash.)
The information was not amended by the bill of particulars. (Commonwealth v. Baltimore Etc. R.R. Co., (Pa.)
Counsel claim that a bill of particulars is not part of an information and can not cure this kind of a defect in the information. If this is true, then it was idle and useless for the court to grant a bill of particulars, incur the expense of a trial, and then permit the defendant to set the verdict aside on the grounds here urged. Where the defect is merely that the information, while charging in the language of the statute, is too general to enable the defendant to properly prepare his defense, then a bill of particulars does become a part of the information and both the State and the defendant are governed and limited by the information as thus modified. This rule is clearly recognized in 31 C.J. p. 752, section 310. (See, also, May v.United States, 199 Fed. (8 Cir.) 53; Commonwealth v.Donaghue, 165 N.E. (Mass.) 413; State v. Knilans,
"In the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, on this the 11th day of July A.D. 1940 in the name and on behalf and by the authority of the State of Montana, Wong Sun is accused by the County Attorney of Lewis and Clark County, Montana, by this information of the crime of practicing medicine without a license committed as follows: That at the County of Lewis and Clark, in the State of Montana, on or about the 10th day of July, A.D. 1940, and before the filing of this information, the said Wong Sun did wilfully, knowingly, and unlawfully practice medicine within the State of Montana without first having obtained a certificate to practice as provided by law, contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Montana."
Defendant was found guilty and fined $300, and in default of payment of the fine was given the alternative sentence of serving the fine out in the county jail on the basis of $2 per day. This appeal is from the judgment.
On being arraigned the defendant waived the reading of the information, a copy of which was handed to him, and likewise waived the statutory time for entering his plea, and pleaded not guilty. His demand for a bill of particulars was denied by the trial court, but on petition to this court invoking our powers of supervisory control we directed the lower court to comply with the demand. (State ex rel. Wong Sun v. District Court,
The first assignment of error is on the court's denial of the motion to dismiss the action at the close of the state's case on the ground that the information failed to state facts sufficient to constitute a public offense. The motion was made on three grounds: (1) That the information did not charge a public offense; (2) that it affirmatively appears from the evidence that such facts as the witness O'Malley might testify to were procured by "entrapment"; (3) that the evidence is insufficient to support a judgment.
The first of these grounds is the only one that is necessary[1] for us to consider, for the reason that the last two are based upon the "evidence," and there is no evidence by way of testimony or otherwise in the record. All that we may consider in the circumstances is the sufficiency of the information, and whether the court erred in certain of its instructions and in the refusal of those proposed by the defendant on which error is predicated.
On the question that the information failed to state facts[2] sufficient to constitute a public offense, section 11843, Revised Codes, provides what the information shall contain, which is as follows:
"The indictment or information must contain:
"1. The title of the action, specifying the name of the court in which the same is filed, and the names of the parties;
"2. 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." It appears clear to us that one of "common understanding" would have no trouble in determining what he was charged with by the information above recited.
Section 11844, Revised Codes, prescribes all the essentials of the form of an information:
"It may be substantially in the following form: The State of Montana against A B. In the district court of the ____ *191 district in and for the county of ____, the ____ day of ____, A.D. nineteen ____. A B is accused by the grand jury of the county of ____, by this indictment (or by the county attorney by this information), of the crime of (giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor), committed as follows: The said A B on the ____ day of ____, A.D. nineteen ____, at the county of ____ (here set forth the act or omission charged as an offense), contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Montana."
While this form is provided by the statute, substantial, but not literal, adoption thereof is all that is required. It need not be literally, but must be substantially, in accord with this section.
Section 11845, Revised Codes, provides;
"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."
Section 11853, Revised Codes, provides: "No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits."
The sufficiency of an information has heretofore been considered by this court in the following and other cases:State v. Tudor,
It is contended that a bill of particulars may not be resorted[3] to for the purpose of perfecting a defective information. Such is the rule, but the bill may be resorted to for the purpose of clarifying the general terms of the information. A bill of particulars performs a function for the information similar to that of a definition for a word.
In 5 Words and Phrases, Perm. Ed., page 497, citing Clary v.Commonwealth,
It was said in State v. Dix,
The second assignment is on the trial court's denial of[4] defendant's motion for a directed verdict of not guilty made at the close of the state's case. The court in this jurisdiction may not direct but can only advise the jury to return a verdict in favor of the defendant in a criminal action. (Sec. 11995, Rev. Codes.) This question is dealt with at length in State v. Thierfelder, supra. The defendant in the case at bar moved for a directed verdict on the ground that the information *193
failed to state facts sufficient to constitute a public offense. The defendant was charged with practicing medicine without a license, and practicing medicine without a license is a public offense under section 3122, Revised Codes. It is true that he pleaded not guilty to the charge, and there is no evidence in the record to show that he treated the complaining witness O'Malley, but it is clear from the assignments of error and arguments of counsel that evidence was received, and the evidence not being before us is the fault of the defendant. (Sec. 1, Rule VI of this court.) (State v. Hopkins,
In the absence of a bill of exceptions in which the evidence[5] or such part of it as is made the foundation of a specification of error might otherwise be found, it will be presumed on appeal that the evidence adduced at the trial of the action was sufficient to sustain the verdict of the jury or decision of the court.
In the case of State v. Gill,
Defendant's specification of error No. 9 is predicated upon[7] the court's instruction No. 18, relating to reasonable doubt. The instruction is in four paragraphs and the last paragraph only is alleged to be erroneous. As we shall later refer to the other paragraphs of this instruction, the whole is hereby recited:
"A reasonable doubt is not such a doubt as a man may start by questioning for the sake of a doubt, nor a doubt suggested or surmised without foundation in the facts or testimony. It is such a doubt only as in a fair, reasonable effort to reach a conclusion upon the evidence, using the mind in the same manner as in other matters of the highest and gravest importance, prevents the jury from coming to a conclusion in which their minds rest satisfied.
"If so using the mind and considering all of the evidence produced, it leads to a conclusion which satisfies the judgment and leaves upon the mind a settled conviction of the truth of the fact it is the duty of the jury to declare the fact by their verdict.
"It is possible always to question any conclusion derived from the testimony, but such questioning is not what is termed a reasonable doubt. A reasonable doubt exists only in that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.
"A doubt produced by undue sensibility in the mind of any *195 juror in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence; you are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt where no doubt would exist if no oath had been administered."
Defendant cites People v. Paulsell,
"To give rise to a `reasonable doubt' the evidence need not amount to an absolute certainty. United States v. Guthrie [D.C.], 171 Fed. 528, 532."
"A reasonable doubt must be a doubt arising out of the evidence, and not a fanciful conjecture or a strained inference.United States v. Politzer [D.C.], 59 Fed. 273, 279."
"A `reasonable doubt' is a fair doubt derived from the evidence or lack of evidence in the case. United States v.Post [D.C.], 128 Fed. 950, 957."
"The `reasonable doubt' which the law provides shall acquit a defendant is one that arises in the minds of the jury after considering, comparing, and weighing all the evidence in the case. Hall v. State, 83 So. 513, 518,
"A `reasonable doubt' is a fair doubt based on reason and common sense. People v. Burke, 121 N.W. 282, 284,
"`Reasonable doubt' is a doubt based upon some reason not purely imaginary, fantastic, or chimerical doubt, but doubt based on reason. State v. Keehn, 160 N.W. 666, 667,
The following are taken from decisions where it is held that the term "reasonable doubt" is incapable of explanation:
"It is impossible to frame a satisfactory definition of the expression `reasonable doubt.' Kane v. Hibernia Ins. Co., 39 N.J.L. [697], 10 Vroom 697, 706, 23 Am. Rep. 239."
"Instruction resulting in elaboration of `reasonable doubt' is erroneous, since such term needs no definition. People v.Rogers,
"The term `reasonable doubt' is so plain that an attempt to explain it would lead to confusion. Endowment Rank K.P. v.Steele, 69 S.W. 336, 337,
"The terms of the expression `reasonable doubt' import the most exact idea of its meaning, and are incapable of simplification, and there is no equivalent phrase more easily understood. Lipscomb v. State, 23 So. 210, 212 [230],
"It is difficult, if not impossible, to so define the term `reasonable *197
doubt' as to satisfy a subtle ad metaphysical mind, bent on the detection of some point, however attenuated, upon which to hang a criticism. McCue v. Commonwealth, 49 S.E. 623, 629,
"Bishop says that there are no words plainer than `reasonable doubt' and none so exact to the idea meant, but, in respect to definitions, says, `we have not seen one which can safely be pronounced both helpful and accurate.' Another authority says `that the words are of plain and unmistakable meaning and any definition on the part of the court tends only to confuse the jury and to render uncertain an expression, which, standing alone, is certain and intelligible.' State v. Blay,
We are inclined to the view that decisions holding that the term defines itself is the most logical of all.
In the case of State v. Harrison,
In considering alleged erroneous instructions it must be[8] remembered that instructions shall be taken as a whole. (Frederick v. Hale,
Defendant cites the case of Robinson v. State,
Instructions 14, 17 and 18, by confining the jury clearly to the evidence in their consideration of the guilt or innocence of the defendant, contain nothing that is prejudicial to the substantial rights of the defendant, and the assignment cannot be upheld.
The next assignment is on the alleged error of the trial court *199 [9] in denying defendant's motion in arrest of judgment. The motion "lies only for certain defects appearing on the face of * * * the information, not waived by failure to demur." (State v.Caterni,
Assignment 10 is on the court's denying a motion for a new[10] trial. This assignment was not argued and, nothing appearing in the record to sustain it, the trial court will not be charged with error in denying the motion.
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON, ANDERSON and ADAIR concur.