State v. Couch

The opinion of the Court was delivered by Mr. Justice Pope.

The appellant was convicted of selling a quart of liquor to Newton Oates, under an indictment charging him with the sale of spirituous liquors to “one W. S. Newell, R. L. Bryant, Robert Holden, G. W. Russell, and to divers other persons to the jurors aforesaid unknownHe appeals from the sentence under said conviction upon several grounds. This Court does not deem it necessary to pursue the questions presented by the appellant, except one of them, for it is important that this single question should be met. We hold that the conviction of the appellant, under this indictment, was illegal, because opposed to the Constitution of the State. In article I., section 18, it is provided: “In all criminal prosecutions the accused shall enjo}r the right to a speedy and public trial by an impartial jury, and to be fully informed of the nature and cause of the accusation. * * *” It is the office of an indictment to fully disclose to the accused the nature and cause of the accusation. Any indictment which fails to fully disclose the offense to the accused is defective. In the indictment under review, in the present case, it will be observed that the name of Newton Oates does not appear as one of the persons to whom the defendant, appellant, is charged as having sold intoxicating liquors. However, it is sought to justify the absence of Oates’ name from the indictment by proof that the defendant, appellant, sold him liquor, which sale, under and by virtue of the 43d section of the dispensary act, approved in 1896 (22 Stát., 148), allowing an indictment to contain the words “to divers other persons to the jurors aforesaid unknown,” was punishable just as if the name of Newton Oates had been actually set forth in the indictment. *288 In the recent case of The State v. Jeffcoat, ante, 196, this Court held that in an indictment where these words, “to divers other persons to the jurors aforesaid unknown,” occur, such words might be treated as surplusage if one or more persons were called by name, and the persons so named in the indictment were on trial. This last named case is practically decisive of the question raised here. The 43d section of the dispensary act of 1896, authorizing the use of the words “divers other persons,” &c., cannot be made to override the constitutional requirements, that every accused must have his offense fully set forth in the indictment or presentment of the grand jury.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.