Merwin v. People

• Decision Date: 08 January 1873
• Court: Michigan Supreme Court
• Parties: Melville Merwin v. The People

26 Mich. 298

Melville Merwin v. The People

Supreme Court of Michigan

January 8, 1873

Heard October 9, 1872

Error to the recorder's court of Detroit.

Judgment reversed, and the prisoner discharged.

S Larned and F. A. Baker, for plaintiff in error, cited: Rhodus v. Com., 2 Duv. 159; Hamblett v. State, 18 N. H 384; State v. Hinckley, 4 Minn. 345; Lord v State, 20 N. H., 404; Low v. People, 2 Parker 37; State v. Longbottoms, 11 Humph. 39; State v. Murphy, 6 Ala. 845; Com. v. Smith, 1 Mass. 245; Wilson v. State, 1 Port. 118; Collins v. People, 39 Ill. 223; Broms v. Com., 2 Duv. 351; State v. Goodrich, 46 N. H., 186; Sheppard v. State, 42 Ala. 531.

Dwight May, Attorney General, for the People.

OPINION

Christiancy, Ch. J.

The information in this case charges that defendant, "on the twenty-eighth day of June, 1872, at the city of Detroit, did feloniously steal, take and carry away, of the property, goods and chattels of John C. Connell, from the possession of said John C. Connell, then and there being found, one hundred and thirty-five dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan."

The only question is, whether the information properly charges the offense of larceny, without a more specific description of the property stolen, or any allegation of its value.

So far as regards the substantial nature and description of the offense, and the mode of setting out the criminal charge, the sufficiency of the information must be tested by the same rules applicable to an indictment: Sess. L. 1859, p. 392, §§ 3, 4; Rev. Charter of the City of Detroit, ch. 6, § 7.

And, since the prosecution, in drawing the information, has not brought the case within the provision of any statute dispensing with any degree of particularity or precision in this respect required at common law--as will be fully shown hereafter--the sufficiency of this information must be tested by the rules applicable to an indictment for larceny at common law.

Among the objects to be accomplished by the mode of setting forth the criminal charge, with its essential and descriptive circumstances, and especially the description of property stolen, the following have always been recognized as fundamental: First, to identify the particular transaction charged as criminal, so that the defendant shall not be liable to be put upon his trial for an offense different from that for which the grand jury have found the bill, or (when under our law the information is substituted) different from that to which the person verifying the information intended to swear; second, that the defendant's conviction or acquittal may enure to his subsequent protection, should he be again prosecuted for the same offense (and though the indemnity may be shown by evidence aliunde where it does not clearly appear from the record, yet it would be more difficult for the defendant to show such identity where no specific description is given in the indictment); third, to inform the defendant of the particular transaction constituting the offense for which he is to be tried, that he may be able to prepare for his defense; and fourth, to enable the court, looking at the record after the conviction, to decide whether the facts, as charged, are sufficient to support the conviction and warrant the judgment; and also, in some instances (as in larceny where the statute provides different degrees of punishment for larcenies above or below a certain amount or value, like our own Compiled Laws, 1857, § 5762 ), to guide the court in the infliction of the proper measure of punishment: See, Starkie's Cr. Pl. (2d ed.), 68; 1 Bish. Cr. Pro., §§ 267, 268.

The ultimate design of all these objects, is fairness to the prisoner; and consequently any indictment which has failed to set forth the offense with such certainty as to accomplish any of these purposes, as far as the nature and circumstances of the case would permit, has generally been held bad, upon general demurrer, or motion in arrest of judgment, or on writ of error. It is, however, true, that in some cases, and to some extent, the omission to state facts not essential constituents of the offense in the abstract, but which are required to be stated, if known, may be excused by an allegation, on the face of the indictment, showing why they could not be stated. Thus, first, the grand jury may not have been able to ascertain the names of third persons whose names ought regularly to be stated; or, second, the means used to take life, in a case of murder; or, third, if in forgery, the forged instrument be lost, or in the hands of, or have been destroyed or concealed by, the defendant; in the first case, the names, in the second, the means used to produce death, and in the third, the exact words of the forged instrument, may be stated to be "to the jurors aforesaid unknown" (though in the case of the forged instrument, its loss or destruction, or its possession or concealment by the prisoner, must be stated, and its substance given). And upon the same principle, the omission of a specific statement of many other facts, not absolutely essential to the existence of the offense, may doubtless be excused in the same way. And that the particular description of the pieces of money stolen, or the amount of each kind, may be excused on the same ground, and in the same manner, was expressly held in Commonwealth v. Sawtelle, 11 Cush. 142.

And this allegation, that the name, or other particular fact, is "unknown to the grand jury," is not merely formal; on the contrary, if it be shown that it was, in fact, known to them, then--the excuse failing--it has been repeatedly held that the indictment was bad, or that the defendant should be acquitted, or the judgment arrested or reversed: Rex v. Walker, 3 Camp. 264; 1 Chitty's Cr. Law, 213; Rex v. Robinson, Holt N. P., 595, 596; Blodget v. The State, 3 Ind. 403; and see Commonwealth v. Hill, 11 Cush. 137; Hays v. The State, 13 Mo. 246; Reed v. The State, 16 Ark. 499, and 1 Bish. Cr. Pro., §§ 300 to 302, where the cases are cited and the result given.

Now within the rules of certainty required by the common law, for the purposes already explained, it has been long and well settled, that merely charging the defendant with having stolen "the goods and chattels" of another, is not sufficient (2 E. P. C., 777, 778); and it seems to be equally well settled that an indictment for stealing money, is not sufficient, if it state only the aggregate amount, without any specification of the...