Kearney v. State

• Decision Date: 20 December 1877
• Parties: EDWARD KEARNEY v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

48 Md. 16

EDWARD KEARNEY v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

December 20, 1877

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, J.

Frank X. Ward and R. Stockett Mathews, for the plaintiff in error.

It can hardly be contended that the penalty imposed by sec. 163, of Art. 30, of the Code of Pub. Gen. Laws, was intended to be visited upon the receiver of any kind of a private bond, private promissory note, &c., or a private bill of exchange--for by such receiving, the party would only obtain at most a chose in action, unless in the case of a promissory note, or bill of exchange, the same were made payable to bearer. If either of those were made payable to order, it would not be negotiable except by the endorsement of its payee, or by forging his signature--and in the latter case, the forger would be guilty of a felony, and would be prosecuted for that offence, rather than for the misdemeanor of receiving. Looking at the whole law, and examining the context carefully, it seems to be undeniable, that the receiver must receive a bond, or note, &c., issued by or under the authority of the State or of the United States, or some one of them--but the indictment fails to charge the appellant with having received any instrument issued by the authority of either.

It does not charge the appellant with having received either of the "things" enumerated in the second prohibitory clause, but with having received " four pieces of printed paper."

An indictment cannot be sustained for receiving a thing of no intrinsic or artificial value. State vs. Bryant, 2 Carolina L. R., 249.

A count for stealing "one piece of paper of the value of one cent" would be good, when a count for stealing a bank note fails in consequence of the instrument being void, but not when it is valid. 1 Wharton Cr. Law, sec. 362 and cases there cited.

When there is any question as to the application of a statute to a chose in action, a count may be introduced for stealing a piece of paper as a common law remedy. In New York, stealing a letter was held not indictable, because of no value; and in England the rule is, that if the piece of paper be valid, the indictment must be exclusively for stealing the chose in action, in which the piece of paper is absorbed. 2 Wharton Cr. L., sec. 1759; State vs. Edson, 10 La. Ann. Rep., 229.

Even bank-notes pleaded as such do not pass under "goods and chattels." State vs. Colvin, 2 Zabris., 207.

Bonds were not held at common law included under bona et catella. "Bonds, bills, notes, which concern mere choses in action were also at common law held not to be such goods whereof felony might be committed, being of no intrinsic value, and not imparting any property in possession of the party from whom they are taken." 4 Bl. Com., 234; 2 East. P C., 597.

Nor the box in which charters concerning land were held. Nor mortgage deeds. A prisoner found guilty of breaking into a house at night with the intent to steal mortgage deeds, the conviction was quashed. Regina vs. Powell, 2 Den. C. C. R., 14 Eng. Law and Eq., 493, 575; Roscoe's Cr. Ev., (new edition,) 969, in which the whole subject is examined.

The statute undertook only to punish the receiving of any bond issued by, or under some public authority, either of this State, or of the United States, or of some other State. It was therefore incumbent on the pleader to charge that the pieces of paper mentioned in the indictment, were bonds issued in the manner set forth in the law, as "bonds issued by or under the authority of the United States."

But the law does not sanction an indictment for receiving a "piece of paper." It enumerates the forbidden things specifically. It is error, therefore, to charge a person with having received anything which the law does not prohibit him from receiving. " A piece of printed paper" is not a bond. The latter is a mixed instrument. It must have a seal, as all public securities have in fact. It must be signed in writing. It is an impression taken from an engraved plate. When the law says one shall not receive a stolen bond of the United States, or issued by their authority, it means that, and if he do receive such a bond, he must be arraigned for doing what the law forbids.

This offence was created a distinct crime by statute.

"It is a well settled general principle of criminal law, that in an indictment for an offence created by statute, the offence must be described in the words of the statute, and when the words of the statute are descriptive of the offence, it is necessary that the defendant should be brought within all the material words of the statute." State vs. Elborn, 27 Md., 488.

The principal rule as to certainty, required in an indictment is this, where the definition of an offence includes generic terms, (as it necessarily must,) either by common law or by statute, it is not sufficient that the indictment should charge the offence in generic terms, but it must state the species--it must descend to particulars. 1 Archbold's Cr. Law, 87, 88.

The objects to be attained by precision in criminal pleadings are succinctly and lucidly stated in 1 Starkie's C. P., 73.

Where prisoners were indicted for a statutable forgery, but evidence showed only forgery at common law, Mr. Justice MILLS refused to strike out the word ""feloniously." Rex vs. Wright, 2 Fost. & Fin., 320; Rex vs. Frost, Dearsley C. C. R., 474.

The Act of 1862, ch. 80, permits only the description of "any instrument," by any name or designation by which it may be known. But such permission was designed only to save the necessity of setting out a copy of such instrument, or a fac simile thereof.

Describing a bank-note as a certain note commonly called a bank-note, is not such a description as will warrant a conviction under 2 Geo. 2, ch. 25; 2 East. P. C., 601; Russ. and Ry. C. C., 384; State vs Price, 12 G. & J., 260.

The rule for following the words of the statute is to be found in 1 Bishop Cr. Proc., sec. 356, p. 252, down to sec. 368 inclusive.

As to the requisites for a statutory indictment, the following authorities may be referred to: Commonwealth vs. McDowell, 1 Browne, 360; 2 G. & J., 246; Rawlings vs. State, 2 Md., 205; State vs. Price, 12 G. & J., 260; 1 Wharton's Cr. Law, secs. 285, 299, 304; Stephens vs. State, Wright's Ohio R., 70; Comm. vs. Wright, 1 Cushing, 46; State vs. Nutwell, 1 Gill, 54. Every material fact must be laid. 7 Vermont, 209; 1 Stewart, 318; Comm. vs. Boyer, 1 Binney, 201; U.S. vs. Bowman, 2 Wash. C. C., 328; Spangler vs. Comm., 3 Binney, 533; U.S. vs. Keen, 1 McLean, 427; State vs. Hutson, 2 Comstock, 669; State vs. Handy, 20 Maine, 81; Com. vs. Merrefield, 4 Metcalf, 418; 12 Met., 240; United States vs. Cruikshank, et al., 2 Otto, 542; 2 Russell on Crimes, 260; 14 Cushing, 142; 6 Cowen, 9; 2 Hill, (S. C.,) 459; 42 Maine, 392; 34 N. H., 510; 5 Grattan, 664; 1 Bishop Cr. Pro., secs. 356 to 360, and cases cited in notes.

Charles J. M. Gwinn, Attorney General, for the State.

Under the Act of 1862, ch. 80, Code 1861--1867, p. 86, Art. 30, sec. 87, it is sufficient, in any indictment for receiving any bond, bill obligatory, or certificate, granted by or under the authority of this State, or of the United States, or any of them, knowing the same to be stolen, to describe the instrument, so received, by any name, or designation, by which the same may be usually known, or by the purport thereof, without setting forth any copy, or fac simile of the whole, or any part thereof. This rule is applicable whether the instrument consists wholly, or in part, of writing, print or figures.

In the indictment in this case the averment is that the plaintiff in error unlawfully received four pieces of printed paper, commonly called United States five-twenty bonds of the issue of 1865, each of the value of one thousand dollars current money, of the bonds, goods and chattels of one Ernest Newrath; then lately before feloniously stolen, well knowing the said bonds to have been feloniously stolen.

The plaintiff in error insists that there is error in this indictment, because Art. 30, sec. 163, of the Code, does not punish the receiving of any piece of printed paper, knowing it to have been stolen.

The objection is not well taken. The words "pieces of printed paper commonly called" may be rejected from the indictment as surplusage. They are wholly unnecessary. The indictment remains good when they are stricken out. King vs. Andrew Redman and others, 1 Leach's Crown Law, 478, (4 Eng. Ed.;) Rex vs. Sadi and Morris, 1 Leach's Crown Law, 472; 1 Starkie on Criminal Plead., (Eng. Ed., 1828,) 247, 248, 249; U.S. vs. Howard, 3 Sumner, 15; 1 Wharton on Crim. Law, (7 Ed.,) sec. 622, and cases cited in note V.

It would have been quite sufficient to have averred in the indictment that the plaintiff in error unlawfully received four United States five-twenty bonds, of the issue of the year eighteen hundred and sixty-five, each of the value of one thousand dollars, of the bonds, goods and chattels of Ernest Newrath, lately before feloniously stolen, well knowing said bonds to have been felonionsly stolen.

"An indictment is good which alleges a larceny of a piece of paper, alleging its value, without any further description." Commonwealth vs. Brettun, 100 Mass., 207; Rex vs. Meade, 4 Car. & Payne, 535; Regina vs. Perry, 1 Car. & Kir., 725; Rex vs. Bingley, 5 Car. & Payne, 602, and note a, 603; Regina vs. Rodway, 9 Car. & Payne, 784, (38 Eng. Com. Law;) Rex vs. Clark, Russ. & Ryan, 181.

MILLER J., delivered the opinion of the Court.

This case is now rightly brought before us by proceedings in the nature of a writ of error after final judgment, and properly presents the question of the validity of the...