Starling v. State

43 So. 952, 90 Miss. 255

• Court: Mississippi Supreme Court
• Decided: March 15, 1907
• Status: Published

Opinion

Whiteield, O. J.,

delivered the opinion of the court.

The indictment in this case contains two counts, and was drawn under § 1058 of the Code of 1892. That section provides that: “If any director, agent, clerk, servant, or officer of any incorporated company, . . . shall embezzle or fraudulently secrete, conceal or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods,” etc., “he shall be guilty of embezzlement and shall be punished,” etc. The first count of the indictment did not add at the conclusion thereof “against the peace and dignity of the state of Mississippi.” Those words were added after the second count. The appellant filed a demurrer to the first count in the indictment, and also a demurrer to the second count in the indictment. The demurrer to the first count was because, as alleged, it did not conclude with the words “against the peace and dignity of the state of Mississippi,” as required by section 169 of the constitution. The second count was demurred to on certain grounds not necessary to state. The demurrer to the first count was also expanded later, so as to express five other grounds, also not necessary, in the view we take of this case, to be stated. The district attorney obtained leave to amend the first count by adding at its conclusion the words “against the peace and dignity of the state of Mississippi.” The appellant excepted. The court sustained the demurrer to the second count, and overruled the demurrer to the first count as amended. Thfe appellant excepted.

The contention most seriously pressed by the learned counsel for appellant is that the words “against the peace and dignity of the state of Mississippi” should have been added after the first count, and that the failure to add them made that count void, and the whole indictment void, and that, since the constitution requires the indictment to conclude with these words, they are necessarily a matter of substance, and not of form, and, being so, the court erred in allowing the first count to be amended by adding them. We are clearly of the opinion that the words “against the peace and dignity of the state of Mississippi” are only required to appear, in the language of the constitution, at the conclusion of the indictment. It is not necessary that they should be repeated after each count. The language of the constitution- is: “All indictments shall conclude against the peace and dignity of the state.” No single count in an indictment containing more than one is the indictment. The indictment is the thing which contains all the counts. There may be many counts, but there can be but one indictment. The hill of indictment, in the language of the law, is a unit, is one complete thing, and it is this bill of indictment to which the constitution has reference in section 169. The bill of indictment in this case did conclude, as the constitution requires, with the words “against the peace and dignity of the state.” Those words, whenever they appear at the conclusion of an indictment, necessarily apply to every count in the indictment going before its conclusion, and it would be the merest tautology to repeat them at the end of each count. All that is meant, when it is said that each count must be complete in itself, is that each count must completely and accurately define the offense, giving all its essential constituent elements, embraced in that count; and, whenever a count in an indictment does that, -it has perfectly fulfilled its office. The words in this indictment, “against the peace and dignity of the state,” do not belong to either count, technically considered. They belong to the conclusion of the whole indictment, as the constitution requires.

Section 169 also expressly provides that “all prosecutions shall be carried on in the name and by authority of the state of Mississippi.” The first count of this indictment charges that the prosecution is “in the name and by the authority of the state of Mississippi,” but the second count does not repeat thát language. Is it possible that a demurrer' to the second count of the indictment would be sustained on the ground simply that those words, “that the grand jurors presented in the name and by the authority of the state of- Mississippi,” were omitted; the idea being that, unless those words were repeated in the second count, the prosecution was not, so far as the second count was concerned, in the name and by the authority of the state ? So to hold would be absurd. The words “in the name and by the authority of the state of Mississippi” are part of the preface of the indictment, just as the words “against the peace and dignity of the state” are part of the conclusion of the indictment, and all that is in the prefatory, as well as all that is in the concluding, part, applies equally to every count in the indictment, without being repeated uselessly therein. Put it in another view: Suppose the demurrer to the first count of this indictment had been sustained, and the first count stricken out. The learned counsel for appellant, to be consistent, would necessarily insist that the second count, also, should be stricken out, because it did not contain these words “in the name and by the authority of the state”; those words having fallen with the first count, in which, according to counsel’s theory, they were contained, which count had been stricken out. These two views serve to put in clear light the utter illogicalness of the view that the words “in the name and by the authority of the state of Mississippi,” in the preface of an indictment, or the words “against the peace’and dignity of the state,” in the conclusion of an indictment, are to be uselessly and tautologically repeated in every .count in the indictment, no matter how many counts. The counts in the indictment are intended to charge, with accuracy and completeness, the specific offense the state seeks to fasten on the defendant— to define the constituent essential elements of such offense — ■. and no more. The prefatory part of an indictment, showing that the process is “in the name of the state of Mississippi” and the presentment “in the name and by the authority of the state of Mississippi,” and the conclusion of an indictment, charging all that has been charged to have been done, in one or many counts, is “against the peace and dignity of the state of Mississippi,” ought not to be properly embraced in any count in any indictment, since both the preface and the conclusion of every bill of indictment apply to every count therein.

This is the view clearly sustained by the best-reasoned cases. We refer to a few only. The supreme court of Tennessee, in the case of Rice v. State, 3 Heisk., 215, held that it was imperative. that all indictments should conclude “against the peace and dignity of the state,” but said it was sufficient if the whole indictment had that formal conclusion. It further said: “It is held that each count in an indictment must be a complete indictment in itself. This, we think, refers to the description of the offense, and not to the formal conclusion.” The constitution of Alabama has the same requirements our does; but that court held, in McGuire v. State, 37 Ala., 161, that it was not necessary to show that each count should conclude with ;these words. Whilst the Texas supreme court did hold that an indictment which did not conform strictly to this constitutional provision was invalid (Cox v. State, 8 Tex. App., 254, 34 Am. Rep., 746), that court nevertheless held that it was sufficient if the indictment as a whole concluded with these words, and that it was not necessary that each count should so conclude. Alexander v. State, 27 Tex. App., 533, 11 S. W., 628; McFarland v. State, 31 Tex. App., 472. Article 90 of the constitution of 1898 of Louisiana contains this same provision; but that court held, in State v. Thompson, 51 La. Ann., , 25 South., 95-1, that “the concluding words of an information necessarily refer to the several counts therein, and their repetition after each count would be useless tautology.” As is well said in one of the Ohio cases cited in the course of argument by the attorney-general, if the framers of the constitution intended that each count should so conclude, it was the simplest thing in the world to say so, and the court said: “The requirement is that an indictment shall conclude with the words ‘against the peace and dignity of the state of Ohio,’ not that each count shall so conclude. The words ‘against the peace and dignity of the state of Ohio,’ at the conclusion of an indictment, mean that the whole indictment and each count therein is against the peace and dignity of the state,” etc. Olendorf v. State, 64 Ohio St., 118, 59 N. E., 892. In the case of Commonwealth v. Paxton, 14 Phila. (Pa.), 665, referring to a similar constitutional provision, it was said: “It has been held that each count in an. indictment must allege a distinct substantive offense; but this, we think, refers to the description of the offense, and not to the formal commencement and conclusion. The bill of indictment, although containing several counts, is one. The first count in the indictment under consideration concludes ‘against the peace, etc.’ The sec-' ond count has the full conclusion. We hold this to be sufficient, and that the words ‘against the peace and dignity of the commonwealth of Pennsylvania,’ in the last count, relate as well to the preceding count.” In Nichols v. State, 35 Wis., 308, where the same constitutional provision is enforced, the court said: “This form is mere rhetorical flourish, adding nothing to the substance of the indictment, and it is difficult to observe why the mandate for its use was inserted in the constitution; yet it is there and must be obeyed. Of course, the accused cannot possibly be prejudiced or in any manner misled by the omission of this formula from the indictment, and the usage of it is held necessary for the sole reason that the constitution ordains that it shall be used, and if the indictment as a whole concludes in the prescribed form, no matter how many counts it may contain, that is all that is required.”

Finally, a case perfectly on all fours with this case and conclusive here is the case of State v. Amidon, 58 Vt., 524, 2 Atl., 154. The constitution there had the same requirements, and exactly what occurred here occurred there. There were two counts in the indictment, and a demurrer to each. The demurrer to the second count was sustained, and to the first count overruled. After the last count were the words “against the peace and dignity of the state.” Those words were not added to the first count. The court said: “Suppose this contention is conceded. Does not this indictment close with the very words prescribed? The indictment does not close at the end of the first count thereof. That count ends in the middle of the indictment.' The two counts together form the indictment. As the indictment closes with the very words prescribed by the constitution, the contention upon that basis is without support or foundation. In indictments, matters of form may be amended; matters of substance may not be. It may be difficult to express in exact language that will be applicable to every case what constitutes substances of an indictment, and what is merely formal. In general, I think it may be laid down that-the statement of every fact necessary to be proven to make the act complained of a crime is a matter of substance in an indictment, and that all beyond the order of arrangement of the precise words, unless particular words alone will convey the proper meaning, is formal.” And the court concluded by holding that the court below properly allowed the first count of the indictment to be amended by adding those words. And the United States supreme court, in the case of Frisbie v. United, States, 157 U. S., 160, 15 Sup. Ct., 586, 39 L. Ed., 657, said-: “So far as respects the objection that the count does not conclude that the offense charged was contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the United States, it is sufficient to say that such allegation, which is one of a mere conclusion of law, is not of the substance of the charge, and the omission is but a mere matter of form, which does not tend to the prejudice of the defendant, and is therefore, within the rule of section 1025 of the Revised Statutes [U. S. Comp. St., 1901, p. 720], to be disregarded.”

Our view is that these words “against the peace and dignity of the state” are in the conclusion of the indictment, that the indictment does in the very language of the constitution conclude with those words, and that that conclusion applies to every count preceding the conclusion, and hence that the first count in this indictment needed no amendment of this sort. The sustaining of the demurrer to the second count of the indictment took that count out of the indictment, but did not take those words constituting the conclusion of the indictment, “against the peace and dignity of the state,” out of the indictment. They remained, and apply to this first coiint in the indictment, which, we think, was perfect against that assault. No amendment being necessary, it is out of place to observe upon the propriety of the amendment. It may be proper to remark that whether those words “against the peace and dignity of the state” constitute matter of form or matter of substance, as those terriis are used in the technical law of criminal pleading,- depends solely on the idea inherently set forth by those words, or, to put it differently, on the essential nature of the thing embraced by those words, and not upon the mere fact that the constitution required them to be used. If those words are of the substance of an indictment, they are so for the same reason that any other words are of the substance of an indictment, because they are essential to.the definition of the offense intended to be charged — not because they are required by the constitution to be used in the conclusion of the indictment. For example, if the constitution had done so foolish a thing as to say that an indictment should conclude ivith a picture of a drawn sword, since the constitution is the organic law of the land, an indictment without that picture would certainly be void; and yet is any logical mind required to admit that the picture of a drawn sword, though required by the constitution, is matter of substance in any indictment ? The constitution may arbitrarily make anything it pleases essential to the conclusion of an indictment; but whether the thing required to be in the conclusion of an indictment is matter of substance or matter of form depends on the essential nature of that thing, and not on the arbitrary requirement that it shall be contained in the preface, or in the conclusion of an indictment.

The second contention of the learned counsel for the appellant is that the appellant’s demand for a bill of particulars should have been complied with. The true rule on this subject is stated, we think, in 3 Ency. of Pl. & Prac., p. 529: “A party will not be obliged to furnish facts already known to his adversary, nor will a bill of particulars be ordered when the means of obtaining the facts are equally accessible to both parties.” See notes 1 and 2, and the numerous authorities therein. It is perfectly obvious from the facts in this record that the appellant knew better than anybody in the case everything which the testimony has disclosed. He kept the books himself, and made all the entries. As a matter of fact, all the books were in the custody of the receiver of the chancery court, and not in the possession of the state. They were consequently just as accessible to the defendant as to the state. He knew, without any bill of particulars, what no bill of particulars could possibly have disclosed, since he himself had made the record which condemned him. The court, therefore, committed no error in refusing the bill of particulars.

It is next very earnestly insisted by learned counsel for appellant that each of the alternative things defined in § 1058 of the Code of 1892 is a distinct offense from each of the other things alternatively therein stated; that, for example, to “embezzle” is one offense, to “fraudulently secrete” is another, to “conceal any goods,” etc., another, to “convert to his own use any goods,” etc., is another, and so on, and so on: The contention seems to be that each of these things denounced by this statute is, in the language of counsel, á distinct offense. The language of the first count is “that the defendant unlawfully, willfully, and feloniously did then and there convert to his own use and embezzle,” etc. It will be observed that the word “embezzle” in this statute is not qualified by the use of the word “fraudulently,” or any other word. It is said in Bishop’s Crim. Proc., sec. 322: “It is believed that the single statutory word ‘embezzle! — ‘did embezzle’ — sufficiently indicates the criminal act; just as ‘did burn’ in arson, ‘did make an assault’ in an assault, ‘did solicit’ in attempt,” etc. Of course, if the statute contains a qualifying word, such as “fraudulently,” or any other, that qualifying word is essential in.the indictment; but our statute contains no such qualifying word. If, now, what learned counsel meant by saying that each of these alternative things denounced in sec. 1058 is an offense distinct in its nature and kind from every other one of the alternative things denounced in said statute, this, we think, is a misconception of the meaning of the statute. Each one of these alternative things denounced in this statute doubtless is a separate and distinct act of embezzlement; but each one of them, at least, is an act of the same nature with every other one of them, but all of them are acts of embezzlement. The statute expressly says that any director, etc., guilty of any of these acts, shall be “guilty of embezzlement.” In other words, the substantive crime denounced by this statute is one and the same thing — embezzlement. The various alternative stated in the statute are merely different forms of embezzlement.

It is not contended by learned counsel that it was incompetent to prove as many of these different acts of embezzlement as the state could; but the insistence is upon the point we are now considering, the refusal of the court to compel the district attorney to elect as to which single one of all these different acts of embezzlement he would proceed' upon, and is simply this: that, the evidence being all in, it was then the duty of the court to limit the state to the selection of one single act, and stand or fall as the proof might warrant on that act. We do not think this is the correct view of this statute. It seems to us competent for the court, since the charge is embezzlement, and since all these alternatives are merely different forms and phases of the one substantive crime of embezzlement, not only to introduce all of them in evidence which it could, but to use any or all of them in substantiating the substantive charge of having embezzled a balance of account of $72,000. If, however, we should be mistaken in this view, it is undoubtedly true that, standing at the close of a completed record, as we do, and looking back on a finished trial, it is perfectly manifest that, if any error was committed in the procedure in this respect, it was not reversible error, since the evidence overwhelmingly shows the appellant guilty of every single act of embezzlement shown in the testimony.

We have most carefully gone through the record with respect to each of the other assignments of error, and have particularly examined the charges for the state in view of the criticisms made of them. What we have just said upon the action of the court in refusing to compel the district attorney to elect, and in setting forth our view of the meaning and purpose of sec. 1058, applies perfectly in answer to the criticisms of the instructions for the state. We deem it unnecessary to protract this opinion further by a specific examination of each of the other assignments of error. Suffice it to say that we are fully satisfied that there was no reversible error shown in this record, and that the defendant has not been prejudiced by any of the rulings complained of.

Wherefore the judgment is affirmed.