26 Haw. 725 | Haw. | 1923
Lead Opinion
OPINION OF THE COURT BY
(Peters, C. J., dissenting.)
Tbe plaintiff in error was tried, convicted and sen-
Counsel’s main reliance would seem to be placed upon the fact that one of tbe allegations is in the alternative. Tbe allegation thus attacked is that tbe taking was “from tbe person or from tbe custody and in the presence” of tbe party robbed.
Section 3791D, R. L., as enacted by Section 1 of Act 215, Session Laws of 1915, provides that “In an indictment for an offense which is constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents or which may produce one or more of several results, two or more of such acts, means, intents or results may be charged in tbe alternative.” Tbe prosecution justifies tbe allegation under consideration under tbe provision of tbe section just quoted and tbe defendant contends that tbe statute is unconstitutional. Whether or not tbe allegation in question is authorized by this section and whether or not, if it is so authorized, tbe section is unconstitutional, we need not consider—for upon another ground tbe allegation can and should be sustained. Tbe argument of tbe defendant is, in brief, that an alternative or disjunctive allegation alleges nothing; that it is a mere statement of an uncertainty ; that it does not inform tbe defendant of what it is that be is charged with; that it does not inform tbe defendant of tbe specifications of tbe charge against him; that an indictment “should descend to particulars;” and that tbe defendant is, under Article VI of tbe amendments to tbe Constitution, entitled “to be informed of tbe nature and cause of tbe accusation” against him. In connection with this argument, tbe defendant also refers to Article V of tbe amendments to tbe Constitution providing that “no
The rule relied upon by the defendant concerning the use of the disjunctive “or” in indictments has been often and variously stated in the books. Its general purport is that “an indictment or criminal information which charges the person accused, in the disjunctive, with being guilty of one or of another of several offenses, Avould be destitute of the necessary certainty and would be wholly insufficient.” United States v. Clarke, 20 Wall. 92 (22 L. ed. 320). The reasons usually given for the rule are that such an indictment would not give the accused definite notice of the offense charged and thus enable him to defend himself and that neither a conviction nor an acquittal could be pleaded in bar to subsequent prosecution for one of the several offenses. Ib. The cases to this effect are undoubtedly numerous. But it has never been held that the mere presence of the disjunctive “or” in an indictment vitiates the indictment or that, in other words, any and eveiw disjunctive allegation must necessarily be bad. Some disjunctive allegations are bad; others are not. Henderson v. State, 113 Ga. 1148. The exception, if it may be called that, is as well established as is the rule itself, that when the disjunctive merely connects two synonymous words or expressions, the allegation does not vitiate the indictment;
“An indictment or information must not charge a party disjunctively or alternatively in such manner as to leave it uncertain what is relied on as tbe accusation against him; but where terms laid in the alternative are synonymous, tbe indictment is good.” 22 Cyc. 296, 297.
“The reason for discarding tbe disjunctive and substituting the conjunctive, was, that using tbe alternative charge left tbe defendant in such doubt as to tbe nature of tbe offense which he was held to answer, that be could not intelligently prepare bis defense ⅞ * s.
“But upon tbe maxim, cessante ratione cessat et ipsa lex, tbe better rule seems uoav to be that ‘or’ is only fatal when tbe use of it renders tbe statement of tbe offense uncertain, and not so when one term is used only as explaining or illustrating the other. ⅞ ⅞ * Where it is manifest that tbe defendant cannot be embarrassed by uncertainty in preparing bis defense by reason of tbe use of tbe disjunctive instead of tbe conjunctive, if tbe form ordinarily used in drawing tbe indictment should be treated as an established precedent essential in all cases, it would be an arbitrary and unreasonable rule.” State v. Van Doran, 109 N. C. 864, 866.
Under an indictment for murder charging that tbe 'deceased was struck “with a stone or an iron hammer” it Avas held that “whether tbe particular instrument used Avas a stone or an iron hammer was not material” and Aras not “necessary to enable tbe defendant to prepare for his defense” and Avas not “necessary in tbe event of a plea of former acquittal or conviction.” State v. Lark, 42 S. E. (S. C.) 175, 176.
In Slover v. Territory, 5 Old. 506, 510, a case largely relied upon by tbe defendant, it Avas said that “matters that are essential to give information of tbe nature of tbe accusation and essential to a description of tbe offense, cannot be omitted” and that “such essential matters” can
If the disjunctive and all that follows it can be rejected as surplusage, then the alternative averment will not be ground for quashing the indictment. Henderson v. State, supra.
It has been held, for example, that an indictment is not defective for alleging the stealing of a “bay or brown” animal, upon the theory that “bay” and “brown” mean the same thing (Henderson v. State, supra) ; also that an indictment is not defective for charging that the killing was done with “a pistol or revolver” upon the ground that “a revolver is a pistol.” State v. Newsom, 13 W. Va. 859, 862.
At common law the offense of robbery consisted of a stealing, accompanied by the elements of force or fear, “from the person” of the party robbed; and yet it has been repeatedly held that where under an indictment for robbery, whether under the common law or under statutes rendering punishable the crime of “robbery” without defining it—in Avhich latter case the common law definition of the offense was always intended and used—the evidence established a stealing (accompanied by the other necessary ingredients) from the custody and in the presence of the party robbed, that was sufficient proof of a taking from the person. In other words, it has'been repeatedly
“Since robbery is an offense as well against the person as the property, the taking must be, in the language of the law, from the person. But the person may be deemed to protect all things belonging to the individual, Avithin a distance, not easily defined, over which the influence of the presence extends. ⅜ * * The better expression is, that a taking in the presence of an individual (of course, there being a putting in fear) is to be deemed a taking from his person.” 2 Bishop Cr. L., Sec. 1117. See also Sec. 1108.
“Open and violent larceny from the person, or robbery, the rapiña of the civilians, is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting him in fear. * * * If the thief, having once taken a purse, returns it, still it is a robbery; and so it is whether the taking be strictly from the person of another, or in his presence only.” 4 Wendell’s Blackstone, page 242.
In Clements v. State, 84 Ga. 660, 662, 663, the trial court instructed the jury that “in order to convict these defendants, it must appear that the goods alleged to have been taken were taken from the person of the owner” and that the property of the owner “is, in contemplation of law, upon the person of the owner, which is, at the time of taking, in the immediate presence of the owner, or is so near at hand, or stored in such position, that at the time of taking, it is under the immediate personal protection of the owner.” On appeal this instruction Avas sustained, the appellate court adding: “It is not necessary in a case of robbery to prove that the property was actually taken from the person of the owner, but it is sufficient if it is taken in his presence.”
“It thus appears that the well settled legal meaning of the words” from the -person, in a statute or indictment
In State v. Lawler, 130 Mo. 366, 371, the court after reviewing the common law definitions of robbery as given by Hale, Hawkins and East said: “It will be observed that the definition as given by East is more full than those given by the other authors, in that the words ‘or in his presence,’ and ‘against his will’ are used alone by East and not by the others, in defining the crime. The words /‘in his presence’ were added to the words ‘from his person’ by judicial construction, as substitutionary of, and tantamount in meaning to ‘from his person,’ and this in order to prevent an evasion of the law.”
To the same effect are 34 Cyc. 1797 ; 24 A. & E. Ency. L. 1002, 1003; 3 Bouvier 2971; Hill v. State, 40 So. (Ala.) 654; Crews v. State, 3 Cold. (Tenn.) 350, 353; Croker v. State, 47 Ala. 53, 57; Jackson v. State, 114 Ga. 826, 827; State v. Kennedy, 154 Mo. 268, 284; State v. Corrigan, 24 Conn. 285, 288; Hill v. State, 42 Neb. 503, 527; Hammond v. State, 43 Tenn. 129, 133, 134; Clary v. State, 33 Ark. 561, 563; and Houston v. Com. 87 Va. 257, 264.
The two expressions weré and are synonymous. If the charge is of a taking from the custody and in the presence, proof of a taking from the person Avill suffice; and if the charge is of a taking from the person, proof of a taking from the custody and in the presence will likewise suffice. The words in the indictment under consideration “or from the custody and in the presence” may be regarded as sur-plusage and could be omitted without in any wise affect
As was well stated in at least one case, “When the reason for the law ceases the law itself no longer applies.” State v. Van Doran, supra. The reason of the general rule contended for by the defendant is that the defendant may not be misled or, in other words, may not be left in doubt as to what the charge is that he is required to meet. What room for doubt was there left by the indictment in this case? It informed the defendant that he was accused of making an assault in the manner described upon one Oshira and that.with the aid of that assault he stole |151. from the party robbed. He Avas indeed told by the indictment that at the time of the taking the money was either on the person of the party robbed or in his custody and in his presence. In legal contemplation the two constitute one and the same thing. In either event the charge was that he took the property from the person. What preparation is there Avhich the defendant could have made if
Article Y of the amendments to the Constitution does hot require adherence to the common law forms of indictment in anything other than matters of substance. With respect to mere matters of choice of words or of forms or
In Slover v. Territory, 5 Okl. 506, 510, the court held that the indictment which charged a taking (in a robbery case) “from the person or immediate presence of” the party robbed “can mean nothing” and did “not apprise the defendant against what he is to defend himself,” that “the allegations of the essentials of the offense” were “in the disjunctive” and that the indictment was “bad for uncertainty.” With this we cannot agree, for the reasons above stated. It should be added that the opinion in that case does not upon its face disclose that the synonymous character of the two expressions used in the indictment was considered by the Oklahoma court or was called to its attention.
Another assignment is that it is not alleged in the indictment that the taking was with intent to steal. It is alleged that the taking was “without the consent and against the will” of the party robbed and that the defendant “feloniously and by force and violence did rob, steal, take and carry away” the money in question. Our statutory definition of robbery is that it consists of “the stealing of a thing from the person of another or from his custody in his presence, by force or putting him in fear.” The charge as stated in the indictment follows the wording of the statute. The language used sufficiently charges and imports a taking with intent to steal. The word “steal” and the word “feloniously” necessarily carry this meaning. “The word ‘feloniously’ used in the body of the indictment, in a legal sense, means, ‘done with intent to commit crime.’ Its use in an indictment has uniformly been held to be a sufficient averment of the intent necessary to constitute the crimé.” State v. Switzer, 38 Nev. 108, 109. “It is urged that there is a failure to set forth facts
The third assignment aboye noted likewise cannot be sustained. R. L., Sec. 3905, provides that “in order to constitute robbery, the force must be used, or the fear excited or taken advantage of, to prevent or overcome resistance, or to prevent or hinder the escape of the party robbed, or to prevent the conveying away, securing or guarding the subject of the larceny from being taken, or to induce the party robbed to surrender the same, or to prevent detection of the crime.” The indictment charges that the defendant was armed with a revolver “with intent in him, the said” defendant, “if resisted, to kill or maim or wound or inflict other severe corporal injury upon” the party robbed and that being so armed he “did make an assault and the said” defendant “in bodily fear and danger of his life then and there did put.” This is a sufficient charge that the force was used to put in fear and to overcome resistance if necessary.
All the assignments of error have been considered. The judgment appealed from is affirmed.
Dissenting Opinion
DISSENTING OPINION OP
I respectfully dissent. I refrain, however, from expressing my reasons as my conclusions involve questions of importance which the majority have found unnecessary to determine and which if, and when, decided should be open to discussion by all the members of the court.
