People v. Hill

• Decision Date: 22 February 1884
• Court: Utah Supreme Court
• Parties: PEOPLE v. HILL

3 P. 75

3 Utah 334

PEOPLE v. HILL

Supreme Court of Utah

February 22, 1884

APPEALS from the third district court. The people appealed from the judgment sustaining a demurrer to the indictment the defendant appealed from an order resubmitting the cause to the grand jury which should be next impaneled after the judgment on the demurrer, and from an order holding the defendant in custody to abide the action of such grand jury. Subsequent to the finding of the indictment, and prior to the judgment on the demurrer being entered, a grand jury impaneled for the third district had convened and been discharged. The opinion states the other facts.

Judgment of the court below in sustaining the demurrer reversed, and cause remanded to the third district court with directions to that court to overrule the demurrer, and allow the defendant to plead to the indictment. Order of the court in refusing to discharge the defendant affirmed.

E. T. Sprague, assistant U. S. attorney, Zera Snow, assistant U. S. attorney, and Arthur Brown, for the people.

This is an appeal by the people from an order of the third district court sustaining a demurrer to the indictment, and is taken under the criminal practice act of 1878: Crim. Prac. Act 1878, sec. 361; People v. Ah Owen, 39 Cal. 604; 47 Id. 112.

On this appeal it is very desirable on the part of the people that it be settled whether: 1. Non-conformity to section 151 is cause of demurrer. Admitting that the legislature may have intended 151 where it has said 152, in subdivision 2 of section 192, does such intention, unexpressed, become effectual? 2. Whether this demurrer contains specifications to the indictment so as to entitle it to be considered at all under section 193. An answer in the negative to either of the above queries involves reversal of the judgment on the demurrer.

The first ground of demurrer (in substance, for ambiguity and uncertainty) is based upon subdivision 2, section 192; the section referred to therein (152) in no way prescribes the form or substance of an indictment, though section 151 does. But an indictment which fails to meet the requirements of section 151 is not demurrable, for the reason that the statute, section 193, has failed by its very terms to make that a subject of demurrer.

But this ground of demurrer is not well taken, for the reason that it fails to point out in what respect the indictment does not comply with the sections named. It is in substance a demurrer that the indictment "is ambiguous, uncertain, and unintelligible;" and this uncertainty must be pointed out in the demurrer--not in argument merely--or it must be disregarded. In civil cases, this is the rule without a statute; in criminal cases, the statute requires it. See Prac. Act, 1878, sec. 193; and see Lopez, Adm'x, v. Central Arizona Mining Co., 1 West Coast Rep. 41, where the rule is carried further than we would admit; People v. Ah Sam, 7 Nev. 127.

Any other rule would enable a defendant to assign, in argument, to the lower court one ground of uncertainty, and on an appeal another and different one, thus raising in an appellate court objections not first taken below, and upon which the lower court had no opportunity to pass.

But we submit the indictment is definite and certain, and contains the "particular circumstances" of the offense, unless it is a rule of pleading that evidenciary facts, and not ultimate facts, must be pleaded.

If to enable the court to pronounce judgment (sec. 158), or the defendant to answer the indictment (sec. 150), it is meant that a defendant is entitled to be advised of all the evidence of the prosecution, the indictment may be insufficient.

If the court below and counsel were asked if the indictment stated a public offense, the answer unquestionably would be that it did (it is not demurred to because it does not state a public offense; on the contrary, one of the objections is that it states too many offenses), and that that offense was embezzlement. If now the indictment states all the facts that the evidence of the prosecution admits of, then we take it the order of the court below will not be affirmed, because the indictment fails to state "particular circumstances," which might have been, but which owing to the scarcity of facts were not connected with the transaction.

We invoke as the broadest rule of pleading (and the one most favorable to defendant), that if an indictment states the particular circumstances of an offense so fully and clearly that the defendant and the court can understand the charge made, it is in that regard sufficient.

Taking sections 150, 151, and 158, and studying them together, and this rule includes all that is required by them.

"Particular circumstances" are words which, literally accepted, are without defined limits. They involve unnumbered relations of persons and things, of time, quality, space, and character, some intimately blended in the transaction itself, others so remote as to be imperceptible, and still others of every intermediate degree. The words require construction and limitation, and the above we submit is a proper one. The charge of embezzlement of one from another involves a confidential relationship which, if it exists, carries with it its own "particular circumstances" of which a defendant knows.

The prosecution has attempted to set out in the indictment that defendant, on the eighth of March, 1883, having been theretofore intrusted by Lucy J. Hill with certificates of deposit, her property, collected the amount thereof, nine thousand dollars, of the bank, with the consent of the owner and the bank, for the purpose of conveying the money from the bank to the said owner, and defendant having so received the money, defendant fraudulently appropriated it to his own use.

Nothing more or less than one sending his check to a bank for collection by another person, the money to be returned at once to the sender, and instead of so returning the money collected the collector appropriates it to his own use.

Can there be any doubt that this constitutes the offense of embezzlement? Call the relationship what you please--that of collector, agent, servant, attorney, bailee; and misname that relationship if you please, the fact there pleaded carries its own legal import and draws after it its own legal consequences. Suppose no other relationship existed between the parties than that implied in the law by the business done, and what allegations in addition to above are needed? Other relationships are not implied on demurrer.

The indictment at bar charges only embezzlement of money. The attempt to make it charge embezzlement of certificates comes from defendant's counsel. The indictment itself negatives that, for it shows that the certificates were not embezzled, but were surrendered on payment. This is the just and legal inference. Therefore, the use of the word "same" instead of "said money" in the clause alleging conversion must refer to the money; or if by a strained construction we are going to make it include the "certificates," it does not create uncertainty, for it is the allegation merely of an impossibility, charging a non sequitur, the allegation of a conclusion merely which the fact pleaded negatives, and is at most a surplusage. In the indictment, then, looked at as charging embezzlement of money and not certificates, is there anything lacking under the strictest rule invoked by counsel?

If the fact in relation to the certificates as pleaded be treated as surplusage (is it not, though, one of the "particular circumstances," showing how and what money defendant received?), can that render the indictment uncertain? An immaterial allegation will never be held to vitiate a material one: People v. Lee Hung, 1 West Coast Rep. 45; 2 Id. 137. Suppose after the word "thereof" in the last clause the words "and one horse" had been added, so that the allegation would have included among the property converted a horse which had not been before referred to, would the addition have rendered the indictment liable to demurrer?

But suppose the indictment were silent as to the certificates, would we not be at liberty to prove defendant's possession of certificates as a part of the circumstances attending the receipt of the money--one of the material ingredients of the crime? and if we may prove a fact, may we not allege it?

But let us examine in detail the objections taken by defendant's counsel in the court below.

It is said the indictment should so describe the offense as to show under which particular section of the chapter on embezzlement the prosecution is brought.

This is assumed, and not supported by any authority, and, as we claim, has no foundation, because it serves no useful purpose, and is impracticable of application. The rule aids neither court nor defendant in determining that the offense of embezzlement is charged. If the indictment states a public offense of embezzlement--and this is conceded--it must come under one or more of the sections. The rule invoked in no way aids in determining punishment, for that depends entirely upon the value of the property embezzled.

A single offense might come within each or all of the sections. For example, an agent or clerk of an express company who converts to his own use property in his possession and being transported for hire. A cashier of a corporate bank may also be at the same time its agent, its attorney, and while having in his custody money to carry to a correspondent, embezzle the money. An agent may be a servant, and a bailee both agent and servant. In either of these cases, might not an offense be charged so as to bring it within any or all of the sections on embezzlement? and because of this hydraheaded relationship, is the offense any the...