State v. Smith

184 A. 494, 56 R.I. 168, 1936 R.I. LEXIS 90

• Court: Supreme Court of Rhode Island
• Decided: April 18, 1936
• Status: Published

Opinions

Flynn, C. J.

This is an indictment which, charges that the defendants conspired together between certain dates to steal the property of the National & Providence Worsted Mills, a Rhode Island corporation. In the superior court, the defendants Anderton and Goldberg filed demurrers and motions to quash the indictment on the ground that the law under which said indictment was drawn is unconstitutional.

The trial justice, upon motion of the defendants and pursuant to the provision of section 1, chapter 348, of the general laws 1923, certified the question thus raised to be determined by this court. This question, as far as it may be considered as properly certified, does not require us to construe the statute in its relation to all possible evidence that may or may not be contemplated in a future trial. Upon this certification, we are concerned with only that much of the constitutional question which has been formally raised and which we have found necessary for determination according to the record before us.

The indictment is brought according to the form authorized in sec. 3, clause 5 of section 1 of chapter 1954 of the public laws of 1932, entitled: “Of Proceedings in Criminal Cases, ’ ’ which section reads as follows: ' ‘ The following forms may be used in the cases in which they are applicable: . . . Conspiracy. — A. B. and C. D. conspired together to murder E. F. (or to steal the property of E. F., or to rob E. F.) ”

The indictment before us charges: “The Grand Jurors of the State of Rhode Island and Providence Plantations and for the Counties of Providence and Bristol, duly impanelled and sworn in said County of Providence, on the seventeenth day of September in the year of our Lord one thousand nine hundred and thirty-four upon their oaths present, That George W. Smith, alias John Doe, Herman P. Goldberg, alias Richard Roe, and Arthur J. Lessard, alias John Doe, all of Providence in said County of Providence, and Raymond J. Anderton, alias Richard Roe, of Newport in the County of Newport on, to wit, the first day of July in the year of our Lord one thousand nine hundred and thirty-two with force and arms, at Providence in the aforesaid County of Providence, and on divers other dates thereafter from time to time between, to wit, the first day of July in the year of our Lord one thousand nine hundred and thirty-two and, to wit, the thirtieth day of September in the year of our Lord one thousand nine hundred and thirty-three, did fraudulently and unlawfully, conspire together to steal the property of The National and Providence Worsted Mills, a Rhode Island corporation. Against the form of the statute in such case made and provided and against the peace and dignity of the State.”

The defendants contend that this is not an indictment by the grand jurors as contemplated in the constitution; that it charges no crime known to the common law or described in any statute; that if either of such crimes be charged, it fails to set out sufficiently the nature thereof and the cause of the accusation; that it fails to charge any crime with sufficient certainty to enable the defendants to plead their acquittal or conviction thereon as a defense to any subsequent prosecution for the same offense; and because of these alleged deficiencies, the indictment is in violation of their rights under secs. 7 and 10 of article I of the constitution of Rhode Island, and also is repugnant to the provisions of section 1 of article XIV of the amendments to the constitution of the United States. The State takes a contrary position in respect to all of the contentions made by the defendants.

The constitutional question thus raised and presented for our immediate determination may be stated as follows: Is that portion of sec. 3, clause 5 of chapter 1954 of the public laws of 1932, entitled “Conspiracy” repugnant to and in violation of secs. 7 and 10 of article I of the constitution of Rhode Island or of section 1 of article XIV of the amendments of the constitution of the United States, and therefore invalid?

In view of our conclusion, expressed later in this opinion, upon the sufficiency of this indictment under our law and constitution, it is unnecessary to quote the provisions of the fourteenth amendment to the United States constitution, or to consider at length the allegations of these defendants to the effect that this indictment and statute deprives them of life, liberty or property without due process of law and without guaranteeing to them the equal protection of the law of the land. Suffice it to say, that similar contentions were made by the defendant in the case of Caldwell v. Texas, 137 U. S. 692, wherein the supreme court of the United States considered and answered adequately the same arguments in this regard as are advanced by the defendants before us. In that ease the indictment, following the Texas statutory form of expression, charged the defendant substantially with killing a person. The defendant, upon pleading “not guilty,” was tried accordingly and convicted thereon of murder of the first degree. The defendant filed his motion for a new trial which the trial court denied and the defendant thereupon appealed to the court of appeals, where he contended that the indictment was so insufficient in substance that it violated the provisions of the constitutions of the state of Texas and of the United States. The Texas court of appeals, however, sustained both the sufficiency of the indictment and the consequent conviction. A writ of error was allowed to be sued out to the United States supreme court and the case was there heard upon the state’s motion to dismiss, and this motion was granted and the writ of error dismissed.

The supreme court there held at page 697: “By the Fourteenth Amendment the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of persons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the State, the constitutional requisition is satisfied. 2 Kent Comm. 13. . . . No question of repugnancy to the Federal Constitution can be fairly said to arise when the inquiry of the State courts is directed to the sufficiency of an indictment in the ordinary administration of criminal law, and the statutes authorizing the form of indictment pursued are not obviously violative of the fundamental principles above adverted to. . , . The plaintiff in error was not denied the equal protection of the laws, nor deprived of the process due by the law of the land. The constitution of Texas secured to him the right to demand the nature and cause of the accusation against him, and the State court determined, as was its province, that this demand was satisfied by the indictment in question. His objections were in effect to the technical sufficiency of the indictment, but not that his rights had been determined by any other rules than those applied to the rest of the community, nor that the court had done more than commit errors in the disposition of a subject within its jurisdiction.”

The requirements of the constitution of Texas in regard to the rights of one indicted for crime are substantially similar to the requirements of the Rhode Island constitution; the contentions of the defendant in the Caldwell case invoked the benefit of the same basic constitutional safeguards as are here claimed; the arguments were addressed as here to the technical or legal sufficiency of the indictment; and otherwise they were substantially the same as made by the defendants in the instant case. Therefore, we are of the opinion that the specifications in the defendants’ motion to quash alleging violation of their rights under article XIV of the amendments to the constitution of the United States will be answered adequately in accordance with the Caldwell case, supra, if we find that the indictment here is sufficient according to our laws and constitution.

The remaining contentions presented by the defendants are important and require a consideration of our constitution, of the statutes, and of the indictment.

The pertinent parts of article I of the Rhode Island constitution, which the defendants have invoked in their behalf, read: “Sec. 7. No person shall be held to answer for a capital or other infamous crime, unless on presentment or indictment by a grand jury ... No person shall, after an acquittal, be tried for the same offence.” Sec. 10: “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; . . . nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land.”

In addition to the portion of clause 5, sec. 3, chap. 1954 previously set forth, the following portions of this statute will help us to understand the purpose of the general assembly, and to pass upon the sufficiency of the form of indictment authorized therein and followed in the indictment before us. These clauses are as follows: “Sec. 3. Clause 1. No indictment, complaint or criminal process shall be abated or quashed for any want of form, or because it omits to allege that the offense was committed, or the act was done, 'feloniously,’ 'burglariously,’ 'wilfully,’ 'maliciously,’ or with 'malice aforethought,’ 'unlawfully,’ 'negligently,’ or with 'force and arms,’ or because it omits to characterize similarly the manner of the commission of the offense, or because it omits to allege the means by which the offense was committed or omits to allege the time and place of the commission of the offense, unless such description, characterization, means, time, or place, is an essential element of the offense; provided it contain such allegation of the offense that the accused is informed of the nature and cause of the accusation.”

“Clause 2. Any defect or want of substance in any complaint or criminal process, other than an indictment, may be amended and supplied in the discretion of the court and the accused shall plead to such amended complaint or process, and any defect or want of substance in any indictment may be amended and supplied with the consent of the accused.

“Clause 5. The following forms may be used in the cases in which they are applicable: . . . Conspiracy.— A. B. and C. D. conspired together to murder E. F. (or to steal the property of E. F., or to rob E. F.). . . . Larceny. — A. B. stole from C. D. one horse. . . .

“Clause 6. An indictment or complaint sufficient before the enactment of this section in its present form shall continue to be sufficient notwithstanding such enactment.”

The general assembly by the language of the statute in question shows clearly that it did not intend or purport to authorize the omission from the indictment of any essential element of the crime to be charged or to nullify any of the constitutional rights of an accused. This is evident especially from its clauses 1, 2, and 6. Clause 1 of this chapter first recites certain descriptive words, phrases and details, which were deemed technical and necessary according to the precise rules of criminal pleading at common law, and, to some extent, according to practice existing in this State at the time of its passage; and then it makes their use in indictments no longer necessary, “unless such description, characterization, means, time, or place, is an essential element of the offense; provided, it contain such allegation of the offense that the accused is informed of the nature and cause of the accusation.” (italics ours)

It is significant that this language fairly reflects the substantial requirements of our constitution in this regard; indeed, the last portion of the clause uses practically the identical language of sec. 10, article I, supra, which has been invoked by these defendants.

Clause 2 then cautiously limits the state’s right to amend criminal process for defects or want of substance to cases “other than indictments,” unless the consent of the accused thereto first be obtained, showing again the legislative desire to refrain from abridging the constitutional rights of the accused.

Clause 6 declares substantially that indictments according to the precise rules and longer forms of pleading, as practiced at common law and substantially accepted here prior to the enactment of chapter 1954, “shall continue to be sufficient, notwithstanding such enactment.” (italics ours)

In our view, the language of this clause, and the statute as a whole', shows clearly that the general assembly did not intend to invalidate, in whole or in part, the accepted forms nor to attempt to change the essentials of pleading required by the constitution. It sought, within such proper limits, to clothe specific words and forms with a technical legal meaning when used in the manner authorized to charge certain crimes therein enumerated, all of which were crimes at common law, whose names were well known as words of art.

Of course, no statute should be held constitutional merely because it was not intended thereby to exceed the express constitutional limitations upon the legislative power. We think, however, that a clear apprehension of the intent and purpose of the general assembly helps materially to measure, according to proper standards, the meaning of its terms and the legal sufficiency of its authorized forms.

It is well recognized that the general assembly has the power to prescribe, change or modify the forms or manner of stating a charge in a criminal process or proceeding. Kenney v. State, 5 R. I. 385; State v. Corbett, 12 R. I. 288.

It is equally true that the exercise of this power in criminal cases is limited and controlled by the paramount law in the constitution. This principle was well stated in Commonwealth v. Freelove, 150 Mass. 66, where Holmes, J., said: “We admit that there are limits to its power in this direction; that, for instance, it could not authorize the omission of allegations necessary to describe a specific crime. Commonwealth v. Harrington, 130 Mass. 35, State v. Learned, 47 Maine, 426, 432.” In the last-mentioned case, it is said: “We do not doubt the power and right of the Legislature to prescribe, change or modify the forms of processes and proceedings in all civil actions, and to determine what shall be deemed a sufficient allegation, in form or substance, to bring the merits of a case before the Court. But, in criminal prosecutions, the exercise of this right is limited and controlled by the paramount law in the Constitution.”

Sections 7 and 10 of article I of our state constitution, supra, substantially require that the defendants be notified by the indictment of the nature and cause of the accusation sufficiently to identify the crime and to prevent, in case of acquittal thereon, a subsequent prosecution for the same offense. The question therefore is narrowed to whether the form of indictment before us sufficiently meets these constitutional requirements. The defendants can not contend seriously that there is in general any doubt of the nature of the crime purported to be charged in the indictment, namely, “Conspiracy.” The very certification, upon their motion, of the question relating to that portion' of the statute dealing with conspiracy, as well as their brief and argument addressed thereto, preclude any other viewpoint.

They do contend, however, that the cause of the accusation is not sufficiently set forth in the indictment in that it fails to state, as the object of the alleged conspiracy, any crime known to common law or described by statute. This claim requires consideration of the meaning to be given to the words “to steal the property of the National & Providence Worsted Mills, a Rhode Island Corporation,” hereafter referred to as the mill.

In the construction of the statutes, it is well settled that ordinary words, in the absence of other disclosed intention, will be given their usual meaning. Prata Undertaking Co. v. State Board, 55 R. I. 454. It is equally well established that the general assembly has power, subject only to constitutional limitations, to clothe ordinary words with a specific or technical meaning when used in a manner as authorized therein. As we view them, the words, “to steal” the property of another person imports something unlawful whether taken in their ordinary or in their technical meaning.

The word “steal,” as defined in Webster’s New International Dictionary, means to “take and carry away feloniously; to take without right or leave and with intent to keep wrongfully; as to steal the personal goods of another.” Feloniously, in general, means “wrongfully and with the intent of committing a felony or crime.” Therefore, to steal the property of another means to wrongfully, and with the intent of committing a felony or crime thereby, take and carry away the property of another. Substituting this meaning of the words “to steal” in the form in this indictment, it would read: “A. and B. conspired to feloniously take and carry away the property of the mill, ” that is, to wrongfully and without right and with the intent of thereby committing a crime, take and carry away the property of the mill. In this form, it is difficult to note any substantial difference between the thus expressed object of the alleged conspiracy and the elements of larceny at common law.

Larceny has been defined in various ways but the substantial elements are the wrongful taking without right and carrying away another’s personal property with a felonious intent. It has been defined as "to feloniously take and carry away the personal property of another.” Bouvier, Law Dictionary; 4 Black. Com. 299. It has also been held that the natural and obvious meaning of the word "steal” is the felonious taking of property by larceny. But it may be qualified by accompanying words so as to show that such was not the meaning. See Darling v. Clement, 69 Vt. 292; cited in 55 A. L. R. at 837.

It appears therefore that the form authorized for conspiracy, namely, "A. and B. conspired to steal the property of C.,” is not much, if any, different from one saying, "A. and B. conspired to commit larceny of the property of C.” In this view, to steal the property of another, when stated as. the object of an alleged conspiracy, is sufficient to denote an unlawful object, which, according to the ordinary meaning of “steal” is here the equivalent of larceny as it was known at common law.

Apart from the ordinary meaning of the words "to steal, ” the general assembly has power, as stated, within the limits of the constitution to clothe ordinary words with a specific or technical meaning. A few references to our statutes will show that the word "steal” has been used frequently and consistently by the general assembly to approximate, if not actually to describe, the doing of the act which constitutes larceny at common law.

Section 11, chap. 397, G. L. 1923, reads as follows: "Every person who shall steal any money, goods, or chattels, . . . or other valuable property . . . shall he deemed guilty of larceny.” (italics ours) Section 12 provides that every person who shall steal or attempt to steal from the person of another,- any money, goods, chattels, or other article in sec. 11, etc., shall be punished in a certain way. Section 26 makes it a criminal offense to break and enter a building with intent to steal poultry, and further states that: "Every person who steals poultry from any building or enclosure, ... or who is discovered in the act of wilfully entering any building or enclosure . . . with intent to steal any of said poultry,” shall be punished or prosecuted therefor. Section 45 which makes it a crime to wilfully and without right, take and drive, ride or use, any carriage, wagon, or other vehicle, other than a motor vehicle, has a proviso that nothing contained in that section shall be so construed as to apply to any case “where property is taken with the intent to steal the same.” Section 71 provides a penalty for each person who shall steal or attempt to steal any horse or other domestic animal. In sec. 13 the word “stolen” is used with reference to receiving property taken by larceny, (italics ours)

From these references, it is reasonable to presume that the general assembly had a similar meaning in mind when it authorized, in clause 5 of sec. 3, a form of indictment for conspiracy. To confirm this, a further reference to chap. 1954, sec. 3, clause 5, seems to indicate clearly that such a meaning was intended to be given to the words “to steal.” Having in mind the various common law crimes, which are specifically mentioned in clause 5, and the constituent elements of each, the general assembly deliberately and expressly authorized a form to be the equivalent of “larceny,” that is, common law larceny, which reads as follows: “Larceny. — A. B. stole from C. D. one horse.”

Except for stating the particular kind of property, to wit, a horse, in this example, the language is substantially the same as “to steal the property of another.” It seems reasonable to conclude from this that the clause “to steal the property of another” was intended to be at least the equivalent of the word “larceny” as used in the same clause following “conspiracy.” Larceny has acquired a technical meaning and ordinarily connotes the elements of the common law crime of that name. Therefore, the form authorized for conspiracy would have the same meaning as if it read: “A. and B. conspired to commit larceny of the property of another.” Instead of repeating the word “larceny” as the object of the conspiracy, the general assembly authorized the use of the words “to steal the property of another.” Hence, it seems to us that the statute itself impressed a technical meaning upon the words “to steal the property of another” as the equivalent of “larceny” as it is known at common law. Taken, therefore, in their ordinary meaning, or in the specific meaning in which they have been used in our statutes, it seems to us that the nature of the crime authorized by the indictment following the statutory form becomes clear, namely, a conspiracy to do an unlawful act and that the unlawful object of the conspiracy, or cause of the accusation, was “to commit larceny of the property of the mill.”

It is difficult for us to see how a subsequent prosecution, in the event of an acquittal upon this charge, could be made upon any allegation of conspiracy to commit the crime of common law larceny, or, as described in sec. 11 of our, statute, supra, between the dates mentioned in the indictment. Therefore, the nature and cause of the accusation, in our opinion, are set forth with legal sufficiency to notify the defendants of the substantial elements of the charge and to prevent their being put upon trial a second time for the same offense.

While the right to be informed of the nature and cause of the accusation is a constitutional as well as a common law right and, therefore, to be carefully guarded and maintained, as was said in State v. Doyle, 11 R. I. 574 at 576, nevertheless, it is also true that our constitution requires no greater certainty in criminal pleading than the common law, and perhaps less. See State v. Davis and Quigg, 39 R. I. 276. Moreover, this court has held in State v. Murphy, 15 R. I. 543: “The defendant contends that a complaint, to satisfy the rules of criminal pleading, should set forth specifically everything which it is necessary for the government to prove to establish the offence charged. Doubtless this is the common law rule, subject to some exceptions. The sufficiency of the complaint here is not determinable by common law rules. . . . The technical precision of the common law rule is not exacted.”

It has been decided by this court in State v. Bacon, 27 R. I. 252, that a conspiracy is a confederation to do something unlawful, either as a means or an end; that in a conspiracy to do something unlawful, the execution thereof, or the means intended or benefit derived, need not be stated in the indictment.

Applying the principles of law approved in State v. Bacon, supra, we are of the opinion that the indictment in the instant case states as sufficiently as is required by the constitution the constituent elements of the crime of conspiracy to commit an unlawful act, to wit, common law larceny.

We concede that this form and indictment is rather general and short and may not be entirely free from possible difficulties. It certainly could not be used to charge a conspiracy to do something which was lawful in itself. We think, however, that the defendants insist upon the inclusion in this indictment of certain details which may well be the subject of a bill of particulars. We do not mean or hold that the bill of particulars can ever be used to supply any defect in substance in the indictment. There may be occasions, however, when the nature of the charge as stated may satisfy the constitutional requirements and yet require for proper preparation of a defense the granting of a bill of particulars.

In this connection we recognize and approve the force and reasoning of the authorities presented by the defendants, particularly the case of People v. Bogdanoff, 254 N. Y. 16, 171 N. E. 890. We agree with the principles enunciated therein both in the majority and in the powerful dissenting opinion. At page 31, the majority opinion says: “Doubtless if district attorneys insist upon using the form employed here, they will at times be unable to meet a challenge to the sufficiency of the description of a crime. . . . With equal ease and with greater certainty the District Attorney might have used, if he had chosen, a more precise form of indictment not subject to any possible claim that the indictment did not describe the same crime covered by the bill of particulars.”

It must be noted, however, that this case, and others relied on by the defendants, have to do with indictments charging the direct commission of some crime rather than ones alleging a conspiracy to commit that crime. By the great weight of authority in this country — with Indiana as the outstanding exception to the general rule — the indictment in the case of a conspiracy need not set out the object of the conspiracy with as much particularity as is required when the indictment charges the direct commission of the crime itself. The reason for this rule is founded in the fact that the gist of the crime of conspiracy is in the unlawful agreement or confederation. Where the object of the conspiracy, as here, is unlawful in itself, neither the statement of the means by which the conspirators intended to accomplish the object, nor its successful accomplishment are essential in the indictment. The rule seems to be the same generally elsewhere. Garland v. State, 112 Md. 83, 21 Ann. Cases 28; Lanasa v. State, 109 Md. 602; People v. Arnold, 46 Mich. 268; Williamson v. United States, 207 U. S. 425; State v. Bacon, supra; State v. Soper, 118 Ia. 1, and cases discussed. 5 R. C. L. §29, 1083. 2 R. C. L. Perm. Supp. §29, p. 1583.

It is well recognized that in construing the constitution-, ality of a statute every reasonable intendment will be resolved in favor of its constitutionality. It is also well established that the burden, in a case such as is presented to us, rests upon the defendants to convince us beyond a reasonable doubt that the general assembly by this enactment exceeded its power and abridged the rights guaranteed to the defendants under our constitution. State v. Kofines, 33 R. I. 211; State v. District of Narragansett, 16 R. I. 424; East Shore Land Co. v. Peckham, 33 R. I. 541; Manufacturers Mutual Fire Ins. Co. v. Clarke, 41 R. I. 277; Fritz v. Presbrey, 44 R. I. 207; Prata Undertaking Co. v. State Board, supra.

While the form of the indictment authorized in sec. 3, clause 5 of chapter 1954, relating to “Conspiracy” goes a long way and is open to the argument that it may invade the constitutional rights of the defendants, nevertheless, in view of the principles above expressed and restricted to the meaning above set forth, a majority of this court can not say beyond a reasonable doubt that the portion of chapter 1954, sec. 3, clause 5, in question is unconstitutional.

The papers in the case with our decision certified thereon are ordered sent back to the superior court for further proceedings.