Gayden v. State, 3 Div. 722

Decision Date12 May 1955
Docket Number3 Div. 722
Citation262 Ala. 468,80 So.2d 501
PartiesLewis R. GAYDEN v. STATE.
CourtAlabama Supreme Court

Robt. Straub, Asst. Atty. Gen., and Wm. F. Thetford, Circuit Sol., Montgomery, for the petition.

Hill, Hill, Stovall & Carter, Hill, Hill, Whiting & Harris, Montgomery, opposed.

SIMPSON, Justice.

The writ of certiorari to the Court of Appeals was granted and on a studious consideration of the case the judgment of that court will be ordered affirmed.

The opinion of the Court of Appeals impresses us as such an apodictical application of the fundamental principle of all free governments that the law secures to every person who is brought to trial on a charge of crime that the acts which constitute his alleged guilt shall be set forth with reasonable certainty in the indictment he is called upon to plead to, that, except for the urgent argument of counsel and the dissenting opinion, further elaboration would seem a redundancy.

Indictments must always conform to the mandates of our organic law. The emphasis in our cases 'that in all criminal prosecutions, the accused has the right * * * to demand the nature and cause of the accusation' now § 6 of the Constitution of 1901--is not meaningless tautology, but one of the cornerstones of our Bill of Rights. As was observed by the late lamented Mr. Justice Brown in Spooney v. State, 217 Ala. 219, 222-223, 115 So. 308, 312;

"* * * It is but an expression of the fundamental principle that inspired civilized man to form a government, the ultimate purpose of which is to protect the individual in working out his destiny, and finds expression in our Constitution in these words: 'That in all criminal prosecutions the accused has a right to be heard by himself and counsel, or either; * * * and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law.' * * * Constitution of Alabama 1901, §§ 6, 13. * * *

"The manifest purposes of the quoted constitutional provisions, where life, liberty, and property are affected, are to secure the citizen against the arbitrary action of those in authority, and to place him under the protection of the law.' * * *'

And that provision and the others of our Bill of Rights 'are to be largely and liberally construed in favor of the citizen.' Dorman v. State, 34 Ala. 216, 238.

We are further restrained in this case by the requirements of the Fourteenth Amendment to the Constitution of the United States. The following utterances by our Federal courts are pertinent: 'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.' Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. 'The petitioner charged that he had been denied any real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process * * *.' Smith v. O'Grady, Warden, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859. 'An intelligent and full understanding by the accused of the charge against him is a first requirement of due process.' Bergen v. United States, 8 Cir., 145 F.2d 181, 187.

Regardless of some ill-considered, loose expressions in some of the cases, the law is and always has been that it is not enough to charge against a defendant a mere legal conclusion as justly inferential from facts not set out in the indictment. United States v. Almeida, 24 Fed.Cas. pages 775, 776, No. 14,433.

'In order to properly inform the accused of the 'nature and cause of the accusation,' within the meaning of the constitution and of the rules of the common law, a little thought will make it plain, not only to the legal, but to all other educated, minds, that not only must all the elements of the offense be stated in the indictment, but that also they must be stated with clearness and certainty, and with a sufficient degree of particularity to identify the transaction to which the indictment relates as to place, persons, things, and other details. The accused must receive sufficient information to enable him to reasonably understand, not only the nature of the offense, but the particular act or acts touching which he must be prepared with his proof; and when his liberty, and perhaps his life, are at stake, he is not to be left so scantily informed as to cause him to rest his defense upon the hypothesis that he is charged with a certain act or series of acts, with the hazard of being surprised by proofs on the part of the prosecution of an entirely different act or series of acts, at least so far as such surprise can be avoided by reasonable particularity and fullness of description of the alleged offense.' (Italics supplied.) United States v. Potter, 1 Cir., 56 F. 83, 89.

See also Williams v. State, 12 Tex.App. 395.

The two counts of the indictment under consideration are numbers 5 and 6, as follows:

'Count 5: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did obtain a narcotic drug, to-wit: opium, by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address;

'Count 6: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did obtain a narcotic drug, to-wit: Morphine, by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address'.

For a better understanding of the question, a breakdown of the various alternatives (eleven in number) prescribed by the statute and charged in the indictment would be useful. Rather than charging these various alternatives in the two counts of the indictment, suppose the defendant had been charged, as would have been possible, in twenty-two counts, or in twenty-two indictments; that in eleven of these the defendant is charged with obtaining morphine and in the other eleven with obtaining opium. The indictment or counts so charging in their numerical order would be that the prescribed drug was obtained by:

1. 'Fraud.'

2. 'Deceit.'

3. 'Misrepresentation.'

4. 'Subterfuge.'

5. 'Forgery of a prescription.'

6. 'Forgery of a written order.'

7. 'Alteration of a prescription.'

8. 'Alteration of a written order.'

9. 'Concealment of a material fact.'

10. 'Use of a false name.'

11. 'Giving of a false address.'

The effect of the argument by the State and the dissenting opinion is that a defendant in Alabama can be put to trial on the above twenty-two charges without any additional information in any of the instances as to the acts he is charged with having committed because (1) the charges are in the words of the statute and (2) the crime charged is one against the public--a rather unusual innovation in criminal pleading, in our mind.

By no means do we intend to detract from the general rule that it is sufficient to charge the elements of a statutory offense in the words of the statute. In passing, however, it is well to note that the real contention before us is not that the indictment does not charge an offense, but that the defendant is not apprised of the thing or things that he is alleged to have done in such a way as that they amounted to a crime. Stated another way, it may be conceded that the defendant is sufficiently informed of the crimes with which he is charged, but it by no means follows that he has been sufficiently informed of the acts which allegedly constituted those crimes. As example, if the indictment had charged that the defendant 'did commit murder,' he would be informed of the crime charged against him, but no student of the law with the slightest conception of constitutional liberty would suggest that he could be put to trial on such an indictment against his will. See 1 Wharton, Criminal Proceedings, § 270 (10th Ed., 1918), and authorities supra. So, a parallel to the general rule that a crime may be charged in the language of the statute is another contemporary and equally important principle that it is not sufficient if to do so would deprive the defendant of a constitutional right. As was said in United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819:

'But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence. An indictment not so framed is defective, although it may follow the language of the statute.'

The following statements illustrate when an indictment may and may not properly be drawn in the words of the statute: 'Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.' United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516. 'It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state...

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