Harrington v. State

54 Miss. 490

• Court: Mississippi Supreme Court
• Decided: April 15, 1877
• Status: Published

Opinion

Chalmeks, J.,

delivered the opinion of the court.

The attempt was to indict the defendant, under § 2489 Code 1871, for the alteration of the record-book of the county treasurer’s office ; but the indictment was fatally defective in several respects.

1. The alteration of the record was charged to have been “ willingly ” done. The language of the statute is “ wittingly.” While it is not always necessary to follow the literal language of the act in framing indictments for statutory offences, it is essential that either the same words, Or words of equivalent meaning, and substantially synonymous, should be used. § 2884 Code 1871; Kline v. State, 44 Miss. 317. “ Willingly ” and “ wittingly ” are not synonymous words, and do not convey the same idea. The one relates to the will, and means “freely,” or “ voluntarily; ” while the other relates to the wit or understanding, and means “knowingly,” or “ designedly.”

2. The indictment is defective because it leaves it doubtful whether the alteration was in the number on the warrant, or in the record of said number as entered on the treasurer’s ledger. If the alteration was in the number on the warrant, there was no offence under the statute, because a warrant is not a record. The language of the indictment is equally susceptible of the construction that it was the number on the warrant that was altered, as that the alteration consisted in changing the entry of the number on the record-book. It does not come up, therefore, to the degree of certainty to “ a certain intent in general,” which is essential in indictments. 1 Bishop Crim. Proc. § 42 et seq.; 1 Chitty Plead. 234.

3. The indictment is also fatally defective in not charging that the alteration of the record was made with intent to injure or benefit some one. It is true that the statute does not expressly require this; but it is manifest that it is only intended to render penal such changes or mutilations in the record as were intended, or at least calculated, to damnify some one, or to benefit the party making it, or some person for whose advantage the accused -was acting. It is provided by the statute that, in addition to the criminal prosecution, the falsifier of the record shall be liable for all damages in an action brought by the party aggrieved. It is evident that it was not the intention of the' law-giver to punish, by imprisonment in the penitentiary, a'change in the record which was intended to make it conform to the truth, or which was honestly thought to have that effect, or which was silly and purposeless, unless the intention or effect was to procure an advantage for, or inflict a loss upon, some one. Though, as a general rule, it is sufficient to charge a statutory offence in the words of the statute, yet this rule does not apply where there are, in the language of the statute, no sufficient words to define any offence. Jesse v. State, 28 Miss. 100; Sarah v. State, 28 Miss. 267.

The wisdom of this principle is strikingly illustrated by the facts of this case. The accused acted as clerk of the county treasurer. In crediting the treasurer on his ledger with a certain warrant which had been paid, he undertook to' specify the warrant by stating its number, amount and date, and the person to whom it was issued. In so doing he made a mistake in the number of the warrant; and, when this was discovered, he erased the improper and substituted the proper number, leaving the entry unchanged in every other particular. We only know the case by the record, and speak of the facts as shown by the bill of exceptions. If the prisoner’s act had any other complexion than this, the record fails to disclose it.

Judgment reversed, indictment quashed, and accused held to await such further indictment as may' be preferred against him.