Lay v. State

• Decision Date: 05 February 1895
• Docket Number: 1,531
• Parties: LAY v. THE STATE
• Court: Indiana Appellate Court

39 N.E. 768

12 Ind.App. 362

LAY v. THE STATE

No. 1,531

Court of Appeals of Indiana

February 5, 1895

Petition for a rehearing overruled April 11, 1895.

From the Randolph Circuit Court.

Judgment affirmed.

N. W Ferguson, J. W. Thompson and J. Canaday, for appellant.

W. A Ketcham, Attorney-General, J. B. Ross, Prosecuting Attorney, S. H. Spooner and M. Moores, for State.

OPINION

REINHARD, J.

The appellant was tried and convicted in the court below on a charge of removing a double gate from a certain fence around a cemetery.

The assignment of errors is that the indictment does not state facts sufficient to constitute a cause of action against the appellant or charge or state a public offense or crime against him, and that the court erred in overruling the motion for a new trial.

The indictment is in two counts. In the first count, after the caption and introductory portion, it is averred that the appellant did "unlawfully, willfully, mischievously and maliciously remove certain parts and portions of a certain fence, structure and work that was then and there around a certain cemetery and burial place for the human dead, then and there situate, by then and there unlawfully, willfully, mischievously and maliciously taking off from, and removing from, said fence, structure and work two gates."

The charging part of the second count is that the appellant did "unlawfully, willfully, maliciously and mischievously remove two certain gates from the certain structure and work which then and there surrounded a certain cemetery and burial place for the human dead, which said two certain gates then and there formed a part of said structure then and there surrounding said cemetery and burial place for the human dead, as aforesaid, contrary," etc.

The section of the statute upon which the indictment is predicated is as follows:

"Whoever willfully, mischievously or maliciously disfigures, defaces or removes any tombstone, monument, gravestone or other structure erected to perpetuate the memory of any deceased person; or any fence, railing or other work in or around any public or private cemetery or burial place; or any shrub, tree or plant therein,--shall be fined not more than five hundred dollars nor less than fifty dollars, to which may be added imprisonment in the county jail not more than six months." R. S. 1894, section 2041 (R. S. 1881, section 1962).

No motion was made in the court below to quash the indictment, and the appellant's counsel readily concede the rule that the assignment of errors assails the indictment as a whole, the same being in more than one count. They insist, however, that neither count is sufficient, and that their argument applies to one count as much as to the other.

The first objection they make to the indictment is that it fails to charge that the cemetery is either a public or a private cemetery. Their contention is that as the words "public or private" are contained in the statute to characterize the cemetery which must have been desecrated in order to make an offense, it becomes absolutely essential to so characterize such cemetery also in the indictment.

"These words are in the statute," they argue, "and the presumption is that they are there for some purpose, and that the usual and ordinary meaning is to be given them. In order to make an indictment good under the second clause of this section, it must aver that the cemetery was either a public or a private one. There is no rule better settled by the authorities and supported by reason and good sense, than that a pleading must be certain; the defendant is entitled to know the precise crime with which he is charged; the indictment should distinctly specify everything which enters into the offense."

We quite agree with the appellant's counsel that an indictment is required to be certain. But what kind of certainty the law demands is a question that has given rise to no little confusion in the decisions of our Supreme Court.

There are, as every lawyer knows, three distinct degrees of certainty that may be required in a pleading, viz:

1. Certainty to a certain intent in every particular.

2. Certainty to a certain intent in general.

3. Certainty to a common intent.

Where the first of these is required, the court will presume the negative of everything which the pleader has not expressly affirmed, and the affirmative of everything which he has not expressly negatived. In other words, the pleader must expressly exclude every conclusion against him.

The second degree of certainty mentioned does not require as much explicitness as the first, and yet it requires more than the third. It is this middling kind of certainty that is required in indictments under the common law. When this degree of certainty is necessary, everything which the pleader should have stated, and which is not either expressly alleged, or by necessary implication included in what is alleged, must be presumed against him.

When certainty to a common intent is all that is required, the court will presume in favor of the pleader every proposition which, by reasonable intendment, i. e., according to the common use of language, is impliedly included in the pleading, though not expressed. 1 Stephen Hist. Crim. Law Eng., p. 281; 1 Bish. Crim. Proced., section 323, et seq.

At a comparatively early period of our judicial history, under the present code, it was decided by the Supreme Court that certainty to a common intent is all that is required in criminal pleadings in this State, and that an indictment or information need not be more certain than a civil pleading. Whitney v. State, 10 Ind. 404; McCool v. State, 23 Ind. 127.

And this holding has been approved as late as the case of O'Brien v. State, 125 Ind. 38, 25 N.E. 137, where it is stated that "reasonable certainty" is all that is required under the code. R. S. 1894, sections 1824, 1825 (R. S. 1881, sections 1755, 1756).

Applying the rule, therefore, that certainty to a common intent is all that is required of an indictment, and that, therefore, the court will presume in favor of the indictment not only everything expressly charged, but also every proposition which is by reasonable intendment included in the language employed, it is our opinion that the indictment is sufficient without the averment that the cemetery or burial ground from which it is charged the gates were taken by the appellant was either a public or a private one.

We know judicially that a cemetery or burial ground or place is a piece of ground set apart for the interment of the dead, and so it is expressly charged in the indictment before us. We also know that a cemetery or burial ground may be either a public or private one. The former class is used by the general community or neighborhood or church, while the latter is used only by a family or a small portion of a community. So far as we are advised, there are no other kinds of cemeteries but public and private ones, when taken in the sense in which they are established by the laws of the State. By reasonable implication, therefore, the words "cemetery" and "burial place" include both public and private cemeteries and burial places, and the charge that appellant took off and removed certain gates from the fence or enclosure of a cemetery, reasonably implies that he took and removed such gates either from a public or a private cemetery. The indictment is, therefore, sufficiently certain without the use of the word "public" or "private."

It is true that, ordinarily, when an offense is purely the creature of a statute, the words defining it in the statute should also be employed in the indictment. But when the language of the statute is substantially followed and the terms employed are certainly of equivalent meaning with those used in the statute, it is sufficient. State v. Miller, 98 Ind. 70; Nichols v. State, 127 Ind. 406, 26 N.E. 839.

If the words "public or private" were used in the statute defining the offense, as words of restriction, limitation qualification or even definition of the classes of cemeteries intended to be included in the statute, there would be sufficient ground for sustaining the appellant's contention in this respect, under the rule that whatever is not included is necessarily and by implication excluded. Thus if it be made unlawful by statute to obstruct a public highway, it is not, also, unlawful to obstruct a private highway, and hence it would be necessary to characterize the highway in an indictment as being public. But the words "public...