People v. Hill

3 Utah 334

• Court: Utah Supreme Court
• Decided: January 15, 1884
• Status: Published

Opinion

EMERSON, J.:

The defendant was arraigned in the third district court upon an indictment for embezzlement, the charging part of which is as follows: “The said Alexander S. Hill, on the eighth day of March, A. D. 1883, at the county of Salt Lake, in said territory of Utah, having been intrusted as bailee by one Lucy J. Hill with two certificates of deposit of money in the Deseret National Bank, to wit, one for the sum of five thousand dollars and the other for the snm of four thousand dollars, both payable to the order of, and both being the property of, said Lucy J. Hill, did collect and receive thereon and therefor from said bank, and as bailee was by said bank and said Lucy J. Hill intrusted to carry and convey from said bank to said Lucy J. Hill, within said county, money to the amount and value of nine thousand dollars, proceeds of said two certificates, an exact description of which is to the jury unknown; and said Alexander S. Hill, being so as aforesaid intrusted as bailee with said certificates and said money, to said amount of nine thousand dollars, the property of said Lucy S. Hill, afterwards, on the twelfth day of March, 1883, at said county of Salt Lake, fraudulently and feloniously did convert the same and the proceeds thereof to his own use. contrary,” etc.

To this indictment the defendant interposed a demurrer, upon the following grounds:

“ 1. On the ground that said indictment does not substantially conform to the requirements of sections 150 and 151 of the code of procedure in criminal -cases, as to the offense charged and the particular circumstances.

“ 2. That more than one offense is charged in the said indictment.”

The demurrer was sustained, to which ruling; the prosecution excepted. Thereupon the counsel for the defendant moved for an order discharging the defendant from custody, and the prosecution moved “ for an order of resubmission to the grand jury, as provided by statute.” The defendant’s motion was denied, and that of the prosecution granted; whereupon the following order was entered: “And it is further ordered and adjudged by the court that the case be resubmitted to the grand jury of this court, at the next sitting thereof, for further consideration and action by such grand jury, and that in the mean time the said Alexander S. Hill be and remain in the custody of the United States marshal.” To all of which the defendant duly excepted.

I have been thus particular in reciting the order made subsequent to that sustaining the demurrer, to demonstrate that the right of the prosecution to prosecute this appeal is in accordance with the doctrine laid down in the-dissenting opinion in the case of People v. Ah Own, 39 Cal. 608, which, in my opinion, is a correct interpretation of the statute; our statute upon that subject being a literal copy of that of California.

The people appeal from the judgment sustaining the demurrer.

Section 192 of the criminal practice act points out what objections appearing upon the face of the indictment may be taken advantage of by way of demurrer. The defendant selects subdivisions 2 and 8 of that section with which to assail this indictment, and they are as follows: “2. That it does not substantially conform to the requirements of sections 150 and 152. 3. That more than one offense is charged in the indictment.”

Section 150 prescribes what the indictment must contain, viz.: “1. The title of the action specifying the name of the court to which the indictment is presented, and the names of the parties; 2. A clear and concise statement of the acts or omissions constituting the offense, with such particulars of the time, place, person, and property as will enable the defendant to understand distinctly the character of the offense complained of and answer the indictment;” and then gives a form for an indictment which must be substantially followed.

Section 151: “It must be direct and certain as it regards: 1. The party charged; 2. The offense charged; 3. The particular circumstances of the offense.”

Section 152 prescribes what shall be done when a defendant is indicted by a fictitious or an erroneous name, upon the discovery of his true name.

The reference to section 152 in subdivision 2 of section 192 is manifestly a mistake, and does not express the legislative intent. Considering the subject-matter of which they are treating, that intent can only find expression in section 151.

This statute being for the protection of the individual, it should not receive such a construction as would deprive him of any right. The intention of the legislature to give a defendant in a criminal prosecution the right to demur to an indictment for any or all the reasons mentioned in section 151, appearing on the face thereof, is manifest; and it is our duty to carry this intention into effect, and so control the words used as to make them refer to the section evidently intended.

Subdivision 2 of section 192 will be read as though the reference were to section 151 instead of 152. Any other construction would lead to an absurdity, and should be rejected. In the construction of a statute, if the meaning of the legislature is manifest, the intention will be carried into effect, although apt words are not used in the act: Crocker v. Crane, 21 Wend. 211. And this rule ought and does go to the extent of correcting errors and mistakes which are clear and obvious, and without which correction no effect could be given to the statute: People v. King, 28 Cal. 274; Ex parte Hedley, 31 Id. 114.

The prosecution contends that^the demurrer does not sufficiently specify the objections to the indictment to meet the requirements of section 193 of the criminal practice act. That section provides that “the demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it must be disregarded.”

The objection raised by the first ground of the demurrer is that the indictment does not substantially conform to the requirements of sections 150 and 151, and under this allegation specifies that two of the direct and certain essentials mentioned in section 151 are not found in this indictment, viz., subdivisions 2 and 3, as to the offense charged and the particular circumstances. This is a sufficient specification of the grounds of the objection, and satisfies the mandate of section 193.

Having disposed of these preliminary matters, we come to the questions raised by the demurrer. By a reference to the first ground upon which the indictment is assailed, it will be sure that the specific objections raised by the demurrer are, that the requirements of subdivisions 2 and 3 of section 151 are not met and complied with. Although section 150 is referred to in the demurrer, yet, as the specification of the grounds of the objection required by section 193 does not refer to any of the requisites contained in 150, it can not be regarded as attacking the indictment for want of conformity to any of the requirements of the latter section, except so far as the provisions of subdivision 2 of this section are inseparably connected with those of subdivision 3 of section 151; all others are deemed to be waived by reason of the failure to specifically point them out.

The objection that an indictment does not substantially comply with the requirements of sections 150 and 151, either one or both, must be taken by special demurrer, specifically pointing out by apt and proper words what conditions of the various subdivision of those sections have been violated. It will not do to demur in the language of subdivision 2 of section 192, and stop with that. The precise grounds must be pointed out: People v. Feilen, 58 Cal. 218.

There is no room for doubt as to the offense sought to be charged upon the defendant. If the indictment is sufficient to charge any offense, it is that of embezzlement, and can be none other. The language used and circumstances averred are applicable to no other offense. So that if it substantially conforms to the requirements of section 151, or to the particular circumstances, the indictment, so far at least as the objections aimed at by this demurrer are concerned, sufficiently charges the crime of embezzlement.

Its sufficiency is to be tested, not by the rules of the common law, but by the requirements of the criminal practice act.

Section 158 of that act declares that the indictment is sufficient if it can be understood therefrom, among other things not called in question here, “ that the act or omission charged as the offense is clearly and distinctly set forth without repetition, and in such a manner as to enable the court to understand what is intended; and to pronounce judgment upon conviction, according to the right of the case.”

It is sufficient if the charge be stated with so much certainty that the defendant may know what he is called upon to answer, and the court how to render judgment. In other words, substantial justice should be more sought after than artificial nicety.

The defendant, whether he be guilty or innocent, if he understands the English language, can not fail to have understood, when the indictment was read to him, that by it he is charged with the embezzlement of nine thousand dollars, the property of Lucy J. Hill.

Even under the above liberal rule, laid down by the legislature as our guide in determining its sufficiency, it is the duty of the prosecution to so frame every indictment as to apprise the defendant with a reasonable degree of certainty of the character of the charge preferred against him. The absence of a direct allegation of anything essential in the description of the substance, character, or manner of the crime can not be supplied by intendment. It is as much an essential requisite under our criminal practice act as it ever was, that all matter material to constitute the particular crime charged should be alleged with such positiveness and distinctness as not to need the aid of intendment or implication. All this is embraced in the fundamental declaration that it is the right of every person accused of a crime “ to be informed of the nature and cause of the accusation.” These rules do not require any hypercritical construction and interpretation of an indictment on the part of the court. All that is required is a fair and reasonable construction and interpretation, that substantial justice may be meted out and society ■ protected. While the court must not lose sight of the rule that every defendant in a criminal prosecution is to be deemed innocent until the contrary is proved, it ought not to blind itself against the equally sacred right of the peaceable and law-abiding portion of the community to be protected from those who are criminally inclined. The straining of this rule in favor of persons charged with crime is bringing the administration of the laws against crime in this country into disgrace. It is hav-ng this effect upon the common, ordinary mind in nearly all communities; and as a result, we are frequently reminded that wronged human nature is seeking to right itself in acts of violence which are a disgrace and reproach to the enlightenment of the age. Courts should do their part towards correcting this state of things, and while obeying the fair construction of the rules of law, as well as the dictates of an enlightened humanity, in sacredly guarding the rights of every person accused of crime when brought before them, they should be equally careful that the legal rights and moral sense of the community receive no detriment through constant familiarity with immunity of crime, by demanding artificial nicety rather than substantial plainness in every step taken by those charged with the prosecution of criminal offenses.

It is claimed by the defendant that this indictment does not meet and satisfy the rules above referred to, and mainly because it is charged that he was “ intrusted as bailee ” with the property, without setting out the particular circumstances of the bailment.

It is doubtless true that the prosecution sought to charge the defendant under section 2124 of the compiled laws, which enacts that “every person intrusted with any property as bailee, * * * who fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them witli a fraudulent intent to convert to his use, is guilty of embezzlement.”

I can see no reason why it is not sufficient to charge the offense in the language of the statute, or what difference it can possibly make to the defendant in an indictment for embezzlement, as bailee, whether the bailment was to keep, to transport, to deliver, or to dispose of. The essential thing in and a concise definition of the crime of embezzlement is the fraudulent appropriation of another’s personal property by one to whom it had been intrusted. If it should turn out upon the trial that the person charged with embezzlement had the right to appropriate the property to his own use, then, no matter what the character of the original bailment, it would be a complete defense, the same as if, in a trial on an indictment for larceny, the goods charged to have been stolen should turn out to be the property of the defendant instead of owned by the person alleged. It has never been held that it was necessary to allege how a person became]owner.

Mr. Bishop, in his work on statutory crimes, section 421, gives the form of the charging part of an indictment for embezzlement by a bailee, which he insists is sufficient, and which is as follows: “ That J. S., etc., on, etc., at, etc., being then and there the bailee of one gold watch, of the value, etc., of the goods and chattels, etc., did fraudulently and feloniously convert,” etc.

In the following section (422) the learned author, commenting upon the case of People v. Poggi, 19 Cal. 600, which reviews the case of People v. Cohen, 8 Id. 42, relied upon by the defendant in this case, uses the following language: “The court of this state [California], however, has gone further, and, contrary to the foregoing views, has held that it is not enough to charge the defendant, as in the foregoing form, with being bailee, but the facts and circumstances of the bailment must be set out. To the writer, this does not seem, on principle, to be necessary, for the following reasons: first, although the fact of the bailment is material, it is in a certain sense incidental; the offense consisting in the person who sustains the relation of bailee to the property doing the forbidden thing. The gravamen of the charge is, that this person did ‘convert the same to his own use.’ It is not denied, and it can not be, that it is sufficient simply to follow the statute in this part of the allegation; therefore, a fortiori, it should be sufficient in the other part. Secondly, the relation of bailee is well known in the law; just as well known, though not quite so common, as the relation of owTner. It is not necessary to allege how a man became owner of personal property, or to state the facts and circumstances of the ownership. When one is charged with being owner, the allegation covers all necessary facts; in like manner, it should be held that, when one is charged with being bailee, the allegation covers all necessary facts.”

The allegation in this indictment that the nine thousand dollars was the property of Lucy J. Hill is just as material an allegation as the one that he was “ intrusted as bailee.” Nothing more is left to be supplied by intendment and implication in the one case than in the other. The fact is, that nothing is left to be so supplied in either. Each must be regarded as the allegation of an ultimate fact.

It has frequently been held that an indictment for embezzlement which charged that the defendant was the agent- of the person whose property was charged to have been embezzled, and that he received it as agent, was sufficient, without setting out in detail the nature and purpose of the agency. It is not perceived why a different rule should apply to “ bailee ” than to “agent.” One is no less a generic term than the other. The case of Commonwealth v. Smart, 6 Gray, 15, so confidently relied upon, is not in point, because in that case the indictment undertook to set out the particular terms under which the property was intrusted to the defendant; and as the court say, there was evidently an omission of a whole clause which was necessary to determine the relation which the defendant bore to the prosecutor in reference to the property. The court were left entirely to conjecture as to what words were intended to be inserted. It is noticeable, moreover, that this case is not referred to by Mr. Bishop, although a decision from his own state, in his review of the subject now under discussion. The demurrer should not have been sustained upon this ground.

The second ground upon which the indictment is assailed by the demurrer is “ that more than one offense is charged.”

This result is supposed to follow from the allegation that the defendant was intrusted as bailee with the two certificates of deposit. After reciting the fact that the money was collected on them, and was intrusted to him as bailee by the bank and said Lucy J. Hill, to carry from tbe bank to her, it proceeds: “ Being so as aforesaid intrusted as bailee with said certificates and said money, to said amount of nine thousand dollars, the property of said Lucy J. Hill, afterwards, on the twelfth day of March, 1883, at said county of Salt Lake, fraudulently and feloniously did convert the same and the proceeds thereof to his own use,” etc.

The only substantive offense charged in the indictment is the embezzlement of the money. All the acts alleged are parts of one and the same transaction, which resulted in the commission of one offense, and that the embezzlement of the money. This is sufficiently made to appear in the indictment. The averments concerning the certificates do not constitute an embezzlement of them: they negative that idea.

. The reference to the certificates in connection .with the charge of the embezzlement of the money is surplusage.

The indictment is not bad for duplicity under section 153 of the criminal practice act.

The demurrer should have been overruled on both grounds.

The defendant appeals from the order of the court below, refusing to discharge him upon sustaining the demurrer. The record shows that the court, upon the motion of the prosecution, ordered the case to be resubmitted to the grand jury which should next meet after the order was made. I am satisfied that neither of these is an appealable order. The order refusing to discharge is in substance the order resubmitting the case, which immediately followed it, and was right and proper if the order of .resubmission was right and proper. It has been ruled, and no doubt correctly, that .the statute does not give the defendant the right to appeal from such an order, and that it can only be reviewed on an appeal from the final judgment.

Subdivision 3 of section 360, which allows a defendant to appeal “from an order made after judgment affecting the substantial right of the party,” applies only to orders made after final judgment, which of course could not be reviewed on an appeal from the judgment: People v. Clark, 42 Cal. 622.

This point was not raised on the appeal; it ought not, however, on that account, to be passed over in silence, and this appeal allowed to become a precedent for others from like orders.

It is understood that the prosecution as well as the defendant desire a construction of section 196, under the provisions of which the order appealed from was made.

- The section referred to enacts: “ If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the same to be resubmitted to the same or to the next succeeding grand jury.”

It will be seen by the record that the defendant was indicted on the fourteenth day of April, 1888; was arraigned, and filed his demurrer on the seventeenth day of May following. For some reason, presumably satisfactory to all parties concerned, the argument on the demurrer was postponed until the sixth day of October, when it was argued and submitted, taken under advisement, and finally disposed of on the tenth day of December, 1883. So that at the time the demurrer was allowed, the grand jury, which found the indictment and the next succeeding one to that had been discharged. For this reason, the defendant insists that the order of resubmission was erroneous, and consequently the order refusing to discharge the defendant was erroneous.

In our opinion, the words “ next succeeding grand jury ” refer back to the time when the judgment on the demurrer is made and entered, and the meaning is, that if the order of resubmission is made, it must be to the first grand jury that meets after the demurrer is allowed. This view is strengthened by the reference made in section 198, which provides that “ if the court directs that the case be resubmitted, the same proceedings must be had thereon as are prescribed in sections 187 and 188.” These sections refer to the proceedings on a motion to set aside the indictment, and section 187 provides, among other things: “If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or if admitted to bail, that his bail be exonerated; or, if he has deposited money instead of bail, that the same be refunded to him, unless it directs that the case be resubmitted to the same or another grand jury.

If the construction contended for by the defendant should prevail, then in every case of a defective indictment, it would only be necessary for the defendant to avoid arrest, or get the hearing and decision upon a demurrer postponed until after the discharge of the grand jury next succeeding the one which found the indictment, and he has placed as effectual a bar to any further prosecution for that offense as a trial and verdict would be.

We do not think this was the intention of the legislature, nor do we think the language used demands that we should so interpret it. Construing the sections referred to together, we think the plain intent is, that in case the court should, for reasons satisfactory to itself, deem it advisable to resubmit a case to a grand jury, it should improve the first opportunity presented to do so, and not keep a defendant in custody or on bail for an indefinite length of time.

There is no absolute rule of construction that compels us to refer the clause “ next succeeding grand jury,” in section 196, to the nearest word that might be an antecedent. The relative may be referred to such antecedent as will give the clause a sensible and reasonable construction: 10 Mee. & W. 728.

The judgment of the court below in sustaining the demurrer is reversed, and the cause is remanded to the third district court, with directions to that court to overrule the demurrer, and allow the defendant to plead to the indictment.

The order of the court below in refusing to discharge the defendant is affirmed.

Twiss, J., concurred. HUNTER, C. J., dissented from the judgment of reversal, and concurred in the judgment affirming the order of the court below.