No. 1134 | N.M. | Aug 29, 1906
OPINION OF THE- COURT.
— The appeal in this case is brought by the Territory, plaintiff below, under the provision of Sec. 3,411, Compiled Laws of 1891, which allows a prosecuting attorney to appeal to the supreme court if he' so desires when an indictment is quashed or judged insufficient on demurrer.
The demurrer contains four grounds the last of which that “the indictment fails to state the ownership of the property” being the one on which the trial court based its decision sustaining the demurrer.
Each of the counts charged that the appellee did present a certain account to the board of county commissioners of Bernalillo county, with intent to defraud and did “obtain from the said county of Bernalillo, the sum of six hundred and seventy-five dollars,” but it nowhere alleges that the money so obtained belonged to or was the property of the county of Bernalillo.
Appellant in his brief says that: “It must be admitted that under statutes similar to ours with regard to false pretenses, the great weight of authority is that ‘an indictment which charges the obtaining of money by false pretenses, is fatally defective if it does not distinctly set out the ownership of the money.'’ ” We agree with this statement of counsel for appellant.
In United States v. Cruikshank, et ah, 92 U. S., 557, the supreme court of the United States, says: “In criminal eases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ ” Amend YI. In United States v. Mills, 7 Pet. 142, this was construed to mean, that the indictment must set forth the offense “with clearness and all necessary certaintj', to apprise the accused of the crime with which he stands charged;” and in United States v. Cook, 17 Wall. 174 that “every ingredient of which the offence is composed must be accurately and ‘clearly alleged.’ ”
It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law, or by statute, “includes generic terms,” “it is not sufficient that the indictment shall charge the of-fence in the same generic terms as in the definition; but it must-state the species; it must descend to particulars.” L. Arch. Or. Pr. and PI. 291. The object of thé indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; these must be set forth in the indictment with reasonable particularity of time, place and circumstances.”
The indictment in this case was brought under Sec. 1,131, Compiled Laws of 1897, and while there is nothing-in the statute as to the ownership of the property, it is not unnecessary to aver such ownership. The statute "includes generic terms.”
In indictments for the obtaining of money by false pretenses; the indictment must allege the ownership of the property, unless there is some legal excuse stated in the indictment, for omitting- such allegation, % Bishop Crim. Pro. 3175; 8 E. P. & P., p. 877.
It is needless to pursue the argument further. The conclusion is irresistible, that the counts are too vague and general in not stating the ownership of the money alleged to have been obtained by false pretenses, no legal excuse being stated in the indictment for the omission. The counts lack the certainty and precision required by the established rules of criminal pleading. It follows, that they are not good and sufficient in law, and the judgment of the lower court is therefore affirmed, and it is so ordered.