Titus v. State

Citation7 A. 621,49 N.J.L. 36
PartiesTITUS v. STATE.
Decision Date28 December 1886
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

On rule to show cause why a new trial should not be granted. Indictment for murder.

J. G. Shipman & Son, for defendant.

Sylvester C. Smith and Henry S.

Harris, for the State.

BEASLEY, C. J. This case is before us on a rule to show cause why the verdict should not be set aside, and a new trial granted. The inquiry thus authorized, however, does not extend so far as to embrace the question whether the evidence was sufficient to sustain a conviction, for the case could not properly be opened to that extent, as the proofs of the defendant's guilt were of the most convincing character. The rule as granted, and which has been referred to this court for its advisory opinion, confines the investigation to three subjects, which* will be disposed of seriatim.

The first of the questions thus propounded is whether the second count of the indictment in this case is good or bad.

The count thus challenged is in the words following, viz.: "And the grand inquest aforesaid, upon their oaths aforesaid, do further present that the said James J. Titus, on the said eighth day of April, in the year aforesaid, at the said town of Hackettstown aforesaid, in said county, and within the jurisdiction aforesaid, in and upon one Matilda Smith, in the peace of God and this state then and there being, did commit rape, and in attempting to commit rape, and in committing rape, in and upon her, the said Matilda Smith, did kill the said Matilda Smith, contrary to the form of the statute in such case made and provided, against the peace of this state, the government and dignity of the same."

It is obvious that this count has been fashioned upon the theory that, if the state relies upon the circumstance that the alleged killing took place in the commission of a rape, the indictment must specifically exhibit such circumstance. If this theory be correct, it follows that no judgment can be founded upon the present verdict; for the count is, in our opinion, radically defective. The mistake of the pleader in this instance is the common one of substituting an inference of his own from a set of facts, in the place of showing the existence of such facts. He alleges that the defendant "did commit a rape," but does not lay a single fact from which the court can see that such conclusion is well founded. No reason is perceived why, if it be necessary to show a rape as one of the constituents of the offense of murder in the first degree, such crime should not be pleaded with the same formality as is requisite when it forms the sole basis of a count in an indictment.

The only attempted justification of this departure from the usual methods of criminal procedure is that the pleader, in describing the crime, has followed the language of the statute; but, even if it were to be admitted that the act referred to contains a description of the offense charged upon this defendant, nevertheless the count would necessarily be declared to be defective and insufficient; for it manifestly belongs to that class of cases that stand aside the general rule that in the indictment the crime may be described in the terms of the statute creating it; for in the section now in question murder in the first degree is defined, in part, by a reference to the crime of rape, without setting forth the constituents of such crime, and consequently, upon well-known principles, such definition, if imported, without explanatory amplification, into the indictment, will not suffice. Mr. Bishop, in his treatise on Criminal Procedure, states the doctrine in these words, viz.: "And, generally, where a statute merely designates an offense by the use of some word, technical or otherwise, yet does not describe the constituents of the offense, the indictment must state it according to its legal and sometimes its actual particulars." 1 Bish. Crim. Proc. § 373.

The count in question is fundamentally defective, and must be regarded as a nullity for all the purposes of this prosecution.

The second question is thus presented in the state of the case, viz.: "Conceding that the second count is bad, whether the evidence of a rape, or attempt to commit rape, can be used under the two other counts, in order to constitute murder in the first degree?" The first of the two counts here referred to is drawn in conformity to the requirement of the forty-fifth section of the criminal procedure act, and charges, in general form, that the defendant, "in and upon one Matilda Smith, in the peace," etc., "did make an assault, and her, the said Matilda...

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23 cases
  • State v. Smith
    • United States
    • Idaho Supreme Court
    • 7 Febrero 1914
    ... ... allegations conforming to the statute. Without them, he was ... liable to be surprised at the trial and could not be expected ... to prepare for it." (State v. McFadden, 48 ... Wash. 259, 93 P. 414, 14 L. R. A., N. S., 1140; People v ... Olmstead, 30 Mich. 431; Titus v. State, 49 ... N.J.L. 36, 7 A. 621, 7 Am. Cr. Rep. 254; State v ... Lowe, 66 Minn. 296, 68 N.W. 1094; State v ... Costello, 62 Conn. 128, 25 A. 477, cited in 11 Am. Cr ... Rep. 517; Fletcher v. State, 2 Okla. Cr. 300, 101 P ... 599, 23 L. R. A., N. S., 581; Ehrlick v ... Commonwealth, ... ...
  • State v. Farnam
    • United States
    • Oregon Supreme Court
    • 12 Diciembre 1916
    ...premeditation, deliberation, etc., which otherwise are necessary to be proven, in order to constitute murder in the first degree." In Titus v. State, supra, the indictment contained three of which two are considered in the opinion, one being: "And the grand inquest aforesaid, upon their oat......
  • Harris v. State
    • United States
    • Wyoming Supreme Court
    • 12 Enero 1926
    ...18 S.W. 128; People v. Giblin, 115 N.Y. 196, 21 N.E. 1062, 4 L. R. A. 757; People v. Flanigan, 174 N.Y. 356, 66 N.E. 988; Titus v. State, 49 N.J.L. 36, 7 A. 621; v. Sullivan, 173, N. Y. 122, 65 N.E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; State v. Johnson, 72 Iowa 393, 34 N.W. 177; State......
  • Bizup v. Tinsley
    • United States
    • U.S. District Court — District of Colorado
    • 6 Diciembre 1962
    ...Such an indictment is constitutional and legal (Graves v. State, 45 N.J.Law, 203, affirmed 45 N.J.Law, 347, 46 Am.Rep. 778; Titus v. State, 49 N.J.Law, 36, 7 A. 621; Brown v. State, 62 N.J.Law, 666, 42 A. 811), and will not be quashed upon an objection, as here, that it did not set forth th......
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