State v. Hinckley

An indictment charged a Defendant with, stealing, taking and carrying away certain property, without accusing him of the crime of larceny, or of any other crime, by name. Held to be a substantial compliance with Sec. 66, p. 755, Stat. of Minnesota, although it does not conform to the .precedents given. The facts constituting the offence must be stated, and the law determines the nature of the offence from the facts. An indictment charged the Defendant with stealing “ divers bank notes amounting in the whole to the sum of five hundred dollars, and of the value of five hundred dollars,” Held to be insufficient for want of certainty in the description. The property should have been described by the number of bills, their denomination, by what bank issued, that they were genuine, or current, and such other description as to enable the Defendant to prepare his defence, and to protect him against a " second indictment for the same offence. An exception to this rule exists in cases where it is impossible for the Grand Jurors to state the description with legal certainty; and in such case the fact that the description is unknown to them, should appear in the indictment. In case of a demurrer to the whole indictment, and there still remains an offence properly charged, after omitting the objectionable parts, the indictment must be sustained. The prisoner would not have been prejudiced upon a trial under such an indictment, if no proof had been introduced to sustain the allegations which were insufficient. But where proof was received, under objection, to sustain insufficient allegations in an indictment, — Held to be error, and fatal to the verdict. Nor was the error cured by the general verdict, even if evidence liad been given to sustain that part of the charge well laid in the indictment; for where improper evidence has been received, which may have a tendency to prejudice a Defendant in a criminal action, a new trial will be granted. Where a party has been committed to answerifor a crime, at a term of the District Court, and he neglects to challenge the panel of the Grand Jury at such term, his confinement in jail will not excuse such neglect; and an indictment found by such Grand Jury will not be set aside on that ground.

REPORTED TO THE SUPREME COURT BY THE JUD&E OE THE DISTRICT COURT OE RICE COUNTY. Points and authorities on behalf of the State: First. — Section 13, Chapter 104 of the Compiled Statutes is merely declaratory of the Common Law, confers no new right, and entitles Defendant to no privileges which he would not have enjoyed at common law. The right of challenge to the jury or to any individual member of the grand jury has existed from time immemorial; but its exercise has always been confined as by our Statute, to objections made prior to the finding of the indictment, either by the Defendant, if present, or by any one present as “Amicus curia.” Luckus Case, 8 Mass. 285; Bacon's Abridgement title Juries “A”’, Comm. vs. Luntle, 9 Mass. 107; Comm. vs. Parker, 2 Pick. 563; Hawkins P. C. B. 2, Ch. 25, Sec. 26; 1 Chitty's Cr. Law 307. 2. This it is believed is the first instance in which the mere non-exercise of this right either from neglect or want of opportunity, has been urged as a ground for disturbing the verdict, and even where valid objections to the grand jury have been raised, courts have uniformly held them to be no ground for arresting judgment, even in cases where the Defendant had no opportunity of interposing his challenge. And while many well considered authorities go to the length of holding that the right is wholly gone if not exercised prior to the finding of the indictment, all the authorities agree that the objections must be specifically urged, if at all, before plea to the merits. In the case at bar the Defendant interposes no objection' whatever to the grand jury, but relies solely upon the purely technical objection that he had no opportunity to exercise the right. For the 1st class of cases, see Comm. vs. Smith, 9 Mass. 107; People vs. Jewett, 3 Wend. 314; State vs. Wolcott, 21 Conn. 271. For the second class of cases, see Comm. vs. Parker, 2 Pick. 563; Haw. P. C. B. 2, Ch. 25, Sec. 26; 1 Chitey Or. Law 307. See also Ch. 107, Sec. 108 Comp. Stat. 3. The affidavit of the Defendant is entirely defective as a basis for the motion, in this, that it does not appear that the Defendant was ignorant of the time of the session of the District Court, or that he requested to be informed of the time when the grand jury would be impanelled, or that he requested to be brought before the grand jury, or that he did not have counsel in court, or that he took any steps whatever to avail himself of his right. 4. Many of the technical objections to the grand jury, may be corrected by amendment, and unless it appears affirmatively that the party has been prejudiced by the disqualification of the panel, or an individual juror, and the causes of such disqualification are specifically set forth, courts always refuse to interfere with the verdict. Amhurst vs. Hadley, 1 Pick. 38 and 40; Anonymous, 1 Pick. 195; Comm. vs. Parker, 2 Pick. 562. 5. The authorities cited in support of the principle that a Defendant in a criminal action can waive no rights, have no application. A party neglecting to challenge grand or petit jurors at the proper time, or neglecting to object to improper evidence, cannot afterwards be permitted to avail himself of the objection. Comm. vs. Webster, 5 Cush. 295; Selleck vs. S. H. Turnpike Co. 13 Conn. 459; People vs. Jewett, 3 Wend. 314; State vs. Walcott, 21 Conn. 280. Second. — Points on demurrer: 1. The first and second grounds of demurrer are untenable. The indictment in these respects is strictly in accordance with the Statutes. P. 756, Sec. 76 Sub. 1, and Sec. 77, P. 760 Comp. Stat. 2. The third and fourth points cannot be sustained. The addition of Defendant’s mystery or profession is an ancient technicality, long since fallen into disuse, and abrogated by Statutes in England and most of the American States, and even when the rule was in force, all objections of this character were regarded as purely technical, and not affecting the merits, and were waived by the plea of not guilty. State vs. McDowell, 6 Black. (Ind) 49; Wharton's Prec'ts pp. 7 and 8 note; Comm. vs. Lewis, 1 Met. 151. In this State the Defendant is required to object to a defect of this character upon arraignment, and a neglect to do so, like a neglect to plead in abatement under the old practice, is a waiver of all objections. Sec. 103-4, P. 763, Sec. 76, Sub. 3, and Sec. 77, P. 760 and P. 756; Comp. Stat. (It is no ground for demurrer) Sec. 118, p. 765, Comp. Stat. 3. The fifth and sixth grounds of demurrer are untenable. The Statute is merely directory. Sec. 67, p. 755. The indictment strictly follows the most approved common law forms, and is sufficient under our Statutes. People vs. Enoch, 13 Wend. 159; 2 Arch. Cr. Plea. p. 354, 16 title larceny. 4. The seventh point raised by the demurrer cannot be valid. Bank notes are made subjects of larceny by Statute, and a description in the words of the Statute is sufficient. They may be described in the same manner as other things which have an intrinsic value, i. e. by any discription applicable to them as chattels. 2 Arch. Cr. Plea. p. 356, note 393, 2 note; Comm. vs. Richards, 1 Mass. 337; Comm. vs. Williams, 9 Met. 273; Samuel vs. Cowen, 12 Met. 240; Davis Cr. Jus. p. 550, Form 6 and 7, p. 553; Form 11, 554; Form 13; People vs. Taylor, 3 Denio, 91; Haskins vs. People, 16 N. Y. 344. 5. With reference to the eighth ground of demurrer, the indictment is entirely sufficient. The insufficiency of the description as to certain articles has no other effect than to strike them out of the indictment, and the verdict is to be applied to the whole property which is properly and sufficiently charged to be stolen, and for the larceny of such property the punishment is to be awarded. Comm. vs. Williams, 2 Cush. 582-8; Haskins vs. People, 16 N. Y. R. 344. 6. With respect to the proof of value, proof of value to the owner is sufficient. 2 Russ. on Cr. 124; 3 Green Ev. Sec. 153. The request to describe bank notes was proper. Haskins vs. People, 16 N. Y. (2 Smith) 348. Third. — With respect to the verdict. Where the jury find the Defendant guilty of a lesser offence included in that charged in the indictment, a special verdict should be rendered accordingly. By a general verdict of guilty, they find by the very terms of their verdict, that the prisoner is guilty of all the material allegations in the indictment, and judgment should be rendered for the offence charged. Comm. vs. Call, 21 Pick. 514; Comm. vs. Williams, 2 Cush. 582-8; Josslyn vs. Comm. 20 Pick. 367; Comm. vs. Hope, 22 Pick. 1. 2. A different rule prevails with respect to a special verdict, for there the jury must specifically set forth in their verdict all the facts necessary to conviction. (See 21 Pick. 514.) The cases cited by Defendant are all cases of special verdicts rendered under peculiar statutes, substantially requiring the value of the property to be set forth, and the Defendant’s counsel relied entirely for authorities to support their position, upon these peculiar statutes. See 1 Scammon (Ill.) R. 393; 3 Gillmam, (Ill. R.) 53, cited by Defendant. But see Contra Jones vs. State, 13 Ala. 153. Fourth. — The Defendant has not been put in jeopardy. If his position upon the first point is correct, the indictment is bad, being found in derogation of his rights, there has been no legal trial, and the indictment is wholly insufficient to support a valid judgment. Comm. vs. Roby, 12 Pick. 496; State vs. Benham, 7 Conn. 418; 1 Arch. Cr. Plea. 114, note and cases cited. 2. If the objection to the grand jury be sustained, the court should direct the case to be submitted to another grand jury and should remand it to the District Court for that purpose, as the case will then be in the same position that • it would have been in had the court below sustained the objection. Sec. 222 c. 115, Comp. Stat.; Comp. Stat., Sec. 112 to 115 inclusive. Defendant’s points and authorities : First. — This indictment was unauthorized by law, having been found in manifest contravention of the Defendant’s legal rights, secured to him by the constitution and declared by public law. Cons. of Minn,., Art. 1, Sec. 7; Collated Statutes, Ch. 88, Sec. 1; ibid. Ch. 104, Secs. 13 and 20, inclusive, pp. 750-1; and see ibid Ch. 114, “ Challenging Jurors,” Secs. 1 and 38, inclusive. 1. The first object here is the intention of the legislature, and in ascertaining the legislative intent, reference should be had to the state of the law and practice when the Statute was enacted, and the additional or superior privilege to be conferred on the citizen ; and having arrived at satisfactory conclusions as to the object intended, the courts will then so construe the Statute that its several provisions will best harmonize with that general intent; so that every word may have a sensible meaning, leaving no useless words, so that no clause will be necessarily repugnant to another clause, so that neither absurdity shall follow, nor injustice, nor even great inconvenience or hardship, nor other unreasonable consequences which the legislature could not be presumed to have contemplated, whereby its beneficial object may be defeated or lost — as to those for whom it was expressly intended. 1 Bishop Crim. Law (2nd Edition) Secs. 64 and 66 inclusive, and notes and cases cited in the notes to section 66; 10 Pick. Rep. 235, Mendon vs. Worcester; 20 Pick. 267, Commonwealth vs. Cambridge; 2 Cranch 358, 399, United States vs. Fisher; 19 Pick. 304, Commonwealth vs. Slack; 4 McLain's C. C. Rep. 463, United States vs. Warner; Dwaris on Statutes, 2nd Ed. 568 and 598 inclusive; 15 Howards 22, S. Rep. 421. Murray vs. Gibson; 2 Pick. 487, Putnam vs Langley; 7 Mass. Rep. 306, Agess vs. Knox. 2. Tested by tbe foregoing rules of construction, and referring to tbe state of tbe law and practice, in this respect, at tbe time of these statutory enactments, involved as the same was, in a conflict of authorities, it is apparent that the intention of the legislature was to recognize and declare the equal right of the citizen to a fair, impartial and duly organized Gra/nd Jury, by whom alone he can be lawfully accused, as well as to a fair, impartial and properly organized Trial Jury, by whom alone he should be tried on such accusation; and to secure that right, to declare by positive public law that “ary person held to ‘answer a charge for a public offence” shall have an opportunity to challenge the Gra/nd Jury or any individual Gra/nd Juror, and at the same time to define the several causes of challenge — the time and manner of interposing the objections, and of determining their validity and the effect of the same. 3. This Defendant, ignorant of the time when the grand jury would be charged and would retire, was by incarceration in the State jañl, distant from the court room, “ held to answer a charge for a public offence,” the same offence charged in the indictment, whereof the court and prosecuting officer had been well advised by the Sheriff, who, as keeper of the State jail, had duly returned a calendar of the prisoners in his custody, including the name of this Defendant, with the date of his commitment, and for what offence. The Defendant should have been brought into court at the proper time in charge of an officer by order of the Judge, on, or without the suggestion of the Prosecuting Attorney, and then notified of his rights and offered an opportunity for the exercise of the same. After being” deprived of such opportunity and this right, it Was clearly wrong to bring up the Defendant into court, and there compel him to answer over to an indictment already found against him by a Grand Jury and Grand jurors, liable for aught that appears, to have been successfully challenged. This was an infraction of Defendant’s legal rights, and a practical denial of justice. 9 Mass. Rep. 107, Commonwealth vs. Smith; 2 Hawkins P. C. B.2 Ch. 25 and 28; 1 Chitty Crim. Law 307, and notes; 5 Mass. Rep. 90, Commonwealth vs. Ryan; 2 Wendell Rep. 314, The People vs. Jewett; 8 Mass. Rep. 285, The Case of John Tucker; 2 Pick. Rep. 549, Commonwealth vs. Parker et al; 10 Pick. Rep. 477, Commonwealth vs. Knapp; Collated Statutes, Ch. 119, Secs. 10, 11, p. 789; 21 Conn. 272, State vs. Wolcott 2 Chandler 172. 4. In criminal cases, the Defendant is not to be presumed to have waived any of his legal rights, and must therefore expressly and in unequivocal terms have relinquished his rights, before he shall be adjudged to waive or abandon the same. 3 Mass. Rep. 126, Commonwealth vs. Andrews; 2 Metcalf Rep. 18, Commonwealth vs. Dota; 5 Pick. Rep. 429, Commonwealth vs. Briggs. 5. W aiving no rights, the Defendant protested against these oppressive proceedings at the earliest practicable moment by interposing this motion, which should have been granted, and the indictment set aside and quashed as unauthorized by law, being found and returned in contravention of statutory provisions of public law, and the Defendant ordered to go forever acquit thereof. Cons. of Minn. Art. 1, Sec. 7. Second. — The Defendant has been compelled to answer over to the indictment, and been once tried, and though that were in law a mistrial, he should not again be subjected to the hardship and costs of a second trial, nor can he be “put twice in jeopardy ” for the same alleged offence; and the order of this court therefore should be such as to secure to him a final discharge from the prosecution, and a release from his imprisonment. Any statutory provision or rule of practice tending to a contrary result would be “ repugnant to the constitution,” and therefore void. Const. of Minn., Art. 1, Sec. 7; 2 Hale 241; 2 Hawke 35, Sec. 1; Schedule S. 2nd in connection; 12 Pick. 502, Commonwealth vs. Raley; 18 John. Rep. 201, People vs. Godwin; 2 Sumner’s U. S. C. Rep. 42; U. States vs. Gilbert, pr. Justice Story; and 7 Conn. Rep. 418, State vs. Benham, and the closing portions of the opinions of the court in The People vs. Caryl; 12 Wendell Rep. 548. This disposes of the Judge’s Beport. Appellant’s points and authorities on the Exceptions: First. — The demurrer should have been sustained, the indictment being bad and insufficient in law. 1 & 2. As to the first and second points presented by the demurrer, it may be necessary only to observe that there is no such court known to the Constitution and laws of this State, as “ The District Court for the County of Rice the term of the court is not stated, nor is it alleged that the Grand Jury were from that or any other particular county, or that they found their indictment in that court and county, nor does it appear that the indictment was returned to, received and filed by its clerk in the District Court of the State of Minnesota Eifth Judicial District at a regular term begun and holden at Earibault, in the County of Rice on the first Monday in April, 1860. See Collated Statutes, Ch. 105, Sec. 64, p. 755. 3*4. The third and fourth points are well taken. At common law, it always was, and still is necessary to state, not only the name of the Defendant when known, as here, but his proper additions of business, or calling and place of residence ; and this rule of the common law obtains in all the States where it has not been superseded by Statute. In England the rule has been changed by a statute of the present Queen, and in the State of Massachusetts the same thing has been done by statutes, while our own Constitution and Statutes have not abrogated the ancient rule. 1 Archibald Cr. Plead, p. 78, and notes and cases cited in notes; 1 Wharton's Prect. of Indictments, p. 7, and notes; Davis Criminal Practice, pp. 18 and 597; 1 Metcalf's Rep. 151, Commonwealth vs. Lewis’, 15 Maine Rep. 122, State vs. Bishop; 1 Wharton's Precedents 7, note E. 5 & 6. The fifth and sixth points taken are fatal to the indictment. When the Grand Jury believe a person is probably guilty, they should proceed by presentment only. This may have been the view taken by them in this case, but when the evidence is so strong that they believe him to be guilty, they shall find an indictment accusing him of and charging him with that crime. Collated Statutes, Ch. 104, Secs. 29, 30, 31, 32, 33, 54, 55 and 56, Ch. 106, Sec. 1, p. 762, Ch. 105. Sec. 1 and 4 inclusive, p. 751 and 759; 2 Bouvier's Law Dictionary, p. 289, and authorities there cited. And as neither course has been adopted either in form or substance, the precept is manifestly bad and insufficient as an indictment. Y. The seventh point is clearly with the Defendant. A. It has come to be an axiom in the science of criminal pleading, that everything necessary to be proved to establish the offence and the guilt of the accused must be first well pleaded in the indictment, before the same can be rightfully so proved; and that to be well pleaded, such facts, each and all, must severally be so laid in the indictment that when proved, link by link, they shall constitute the complete chain of evidence ; and this to the end, that the accused may be able to prepare aud make his defence, that the Judge, when the evidence comes to be offered, may at once see whether the same be admissible and proper; that the jury may determine the more understanding^ whether the evidence establishes the facts as laid in the indictment, and finally that the record of the judgment, when rendered, shall be the protection of the accused against a second prosecution for the same offence. B. Thus in larceny the indictment should describe the several species of property, with the value of each and all, with reasonable certainty of identity; and hence when a “ Bank Note ” is the subject of the supposed larceny, it should be laid in the indictment by its distinctive denomination, by what incorporated bank, in the State issued, that the same is genuine, and its value; or if it be a “ Bank Note ” of a foreign bank, then it should be described by its known denomination, and as purporting to have been issued by such a bank in such a State or county, current within this State by the laws and usages thereof, and its value. To this rule there is one exception or qualification which obtains only, when the prosecutor and witnesses are unable to ascertain the denominations, the “Bank note ” not having been reclaimed, and so alleged to be mtimown to the Jury. "While it is conceded that as to this last proposition, there is great looseness, and some conflict in the reported cases, we claim that the rule we contend for is best supported both on principle and authority. 21 Boston Law Reporter 27, Commonwealth vs. Grimes; S. J. Court, Mass. 1858; 3 Denio Rep. 91, People vs. Taylor, and authorities cited; 16 N. Y. Bep. 344, Haskins vs. The People; Parker’s Crim. Law; 2 Archibalds C. P. p. 393-1-2 and notes; 4 Denio Rep. 364, Johnson vs. The People, instructive case; Wharton's Precedents of Indictments, note A. p. 190, and text forms and notes on pages 196-7 inclusive; Collated Statutes Ch. 133, Secs. 1 to 3 inclusive, p. 855. C. Here it is not alleged that the distinctive denominations of the “divers” bank “notes” were to the Jurors unknown, while the case finds in fact that they had all been reclaimed and so well known to the prosecutor in all the details of necessary descriptions. This is fatal. 8. The eighth point is well interposed by the demurrer. Tested by the foregoing rules of pleading, this description of the coin as “ divers other pieces” of gold coin current, within this State by the laws and usages thereof, and of the aggregate value offou/r hundred and eighty-three dollars, is bad for uncertainty. In the State vs. Murphy, 6 Ala. Rep. 845, it is decided that uin an indictment for la/rcewy changing sundry pieces of silver coin made current by law,usage and custom, etc., amounting to the sum of $530 15, description of the money is insufficient for uncertainty, and that the number and denomination of the coin should be stated.” See 2 Arch. Cr. Pleadings, p. 393, aud note. 9 & 10. These objections look to the indictment as a whole, and of course include the previous points now considered, and the object of these last is mainly to show that those defects have not been, cured by any proper subsequent averment, with this additional suggestion that though some intermediate portions of the indictment standing alone might or might not be sufficient, it could not relieve the difficulty here, for where the indictment contains, as this does, but one count, charging one offence only, if any of the constituent portions of the same are materially deficient, then the indictment being bad in part is bad in toto, and should not be upheld. Here we rest the demurrer. Tlwrd. — The Judge below erred in the admission of evidence at the trial. 1. It is proper and indeed indispensably necessary to prove the description of the property, but before that evidence can be received, the description must have first been well pleaded in the indictment; and, that not done, hence the validity of that objection presented by the demurrer, and hence too, the manifest impropriety in allowing the Attorney’s question to the prosecutor and his witness — “describe, if you ccm, any of the bank notes that were stolen from the safe f 2. And the evidence elicited from a wrong question was itself equally wrong, as well as quite insufficient for the purpose for which it was intended, for the witness “ described a portion of the bank bills by their denomination, and that they purported to be bills on banks in the “States of Missouri, Illinois and "Wisconsin.” Hence all this should first have been laid in the indictment, with suitable averments that the same were genwme bank notes, or current as such in this State, and the value, or other similar averments. Johnson vs. The People, 4 Denio R. 364, before cited; 12 Wendell Rep., People vs. Caryl, p. 547. On the last point no evidence was given “ except that the same was worth the sum of $500 to ¥m. H. Dike & Co.” Counterfeit bank notes have in legal contemplation no value, and so not the subject of larceny, and yet they may be “worth” to the counterfeiter and his confederates dealing in his ware the amount they represent, because they may know where the same can be disposed of to other parties. And here for aught that appears in the indictment or evidence, or both, these bank notes may have been spurious — valueless in law — and not the subject of larceny. 4. It is too well known to be now questioned, or to justify the extensive citation of authorities, that property — bank notes or coin — to be the subject of larceny, whether at Common Law or under the Statutes, must have a legal value in law and in fact; and the same must be well alleged in the indictment, and clearly proved at the trial. 2 Bishop Crim. Law, Sec. 694; Wharton’s Indict. Note (B), p. 191; 1 Minn. Rep. 293, U.S. vs. Gibeon; 9 Abbott Pr. Rep. 16, Kolle vs. The People, Sup. Ct. N. Y. 1859. 5. On the same general ground that the number, denomination and separate value of the “ divers other pieces of gold coin,” has not been laid in the indictment, it was error to receive evidence thereof at the trial. Fourth. — The verdict is bad and insufficient in law to authorize and justify judgment and sentence thereon. 1. The verdict must be so found that it shall be seen of record, that every material element constituent to the offence and determinative of its legal character and degree has been found by the jury. “ In order to enable the court to order the proper judgment and pronounce the right sentence; and this must expressly appear by the verdict itself, for it is not competent for the court to supply any defects in the verdict by intendment or implication.” 17 Howard Pr. Rep. 316, O'Larey vs. The People; 9 Abbott Pr. Rep. (Digest) 481-2, and cases there referred to ; Collated Statutes, Ch. 99, Sec. 14, 15, 16. 2. In a prosecution for larceny it is necessary, first, to allege the value of the property with proper averments in the indictment; second, to prove clearly at the trial the value as so laid; and third, that a verdict of guilty should also state the value of the property, or so much thereof, as were stolen, which was then alleged, proved, and found by the jury. The verdict is incomplete and defective in not finding the value of the property, and should have been set aside on Defendant’s motion as clearly bad. 1 Scammon's Ill. Rep. 392, Highland vs. The People; 3 Gilman's Ill. Rep. 53, Sawyers vs. The People; 1 Green (Iowa) Rep. 316,- vs. State; see, also, 2 Archibald's Cr. Pl. 361-2, last of note (1) at bottom page.