Starling v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C. J.
• Citation: Starling v. State, 90 Miss. 255, 43 So. 952 (Miss. 1907)
• Decision Date: 27 May 1907
• Parties: WILLIAM STARLING v. STATE OF MISSISSIPPI

43 So. 952

90 Miss. 255

WILLIAM STARLING v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 27, 1907

March 1907

FROM the circuit court of Washington county, HON. SIDNEY M. SMITH Judge.

Starling the appellant, was indicted, tried and convicted of embezzlement and appealed to the supreme court.

An indictment for forgery against the defendant growing out of the same transactions was adjudged bad and the state appealed to the supreme court. That case is reported, see case, State v. Starling, next preceding this one in this volume.

The facts touching the points in controversy sufficiently appear from the opinion of the court.

Judgment affirmed.

R. B Campbell, J. H. Wynn, and Shields & Boddie, for appellant.

1. Failure of the indictment to conclude with the words "against the peace and dignity of the state" as required by the constitution was fatal. Constitution 1890, sec. 169; Love v. State, 8 So. 465; State v. Morgan, 79 Miss. 65, 31 So. 338; Miller v. State, 81 Miss. 162, 32 So. 951; 22 Cyc., 234; 10 Ency. Pl. & Pr., 441.

2. Each count in the indictment should have so concluded. 10 Ency. Pl. & Pr., 444; 22 Cyc., 249; Williams v. State, 1 S.W. 149, and 70 S.W. 933.

3. Failure to so conclude was not amendable without the consent of the grand jury. Constitution 1890, sec. 27; Cox v. State, 8 Tex. Ct. App., 254; Ex parte Bain, 121 U.S. 1; in 22 Cyc., 251, the cases of Cain v. State, 4 Blackf.; Com. v. Hoxey, 16 Mass. State v. Minford, 64 N. J. L. and State v. Amidon, 58 Vt., are cited as holding that failure to so conclude in an indictment is amendable; but the first mentioned of these cases allowed the amendment with the consent of the grand jury, which, according to the practice of that state, gave its consent upon returning indictments, that any formal amendment therein might be made, and that case is obnoxious to appellant's view, only so far as it holds that such a defect is formal, and not of substance. Com. v. State, 16 Mass. does not touch upon the question here involved, and in State v. Minford, 64 N.J.L. deciding such a defect to be one of form, and amendable under the statute of that state, it also appears that the grand jury had consented to the amendment. In Frisbie v. United States, 157 U.S. 160, the failure of the indictment to so conclude was held to be a formal defect, that was cured by an act of congress providing that such defects should not render an indictment insufficient, nor affect the trial thereunder; but that case did not involve any constitutional question, as the constitution of the United States does not require an indictment to conclude in any particular way.

The only case that holds the question under discussion adverse to appellant is the case of State v. Amidon, 58 Vt., and as opposed to that case is the case of Cox v. State, 8 Tex. Court of Appeals, ubi supra, wherein that court says that the conclusion of an indictment, being prescribed by the organic law, is a matter of substance as well as of form.

As the failure of the indictment to conclude as required by the constitution may be raised at any stage of the proceedings, even for the first time, on appeal, and, whenever raised, will be fatal to it, it must be of substance. How can it be otherwise since it is required by the organic law of the state, and has been in every constitution that our state has had?

It is clear that § 1351, Code 1892, does not cure the defect, and, if not a formal defect within that section, how can it be said to be covered by Code 1892, § 1355? If not a formal defect, within the meaning of the first of these sections, it should not be considered such within the meaning of the other section and, if not covered by these sections, there is no other section of the code, that authorizes an amendment of an indictment as to the conclusion required by the constitution.

3. If the indictment was amendable in that regard it should have been actually amended, and spreading the amendment in the minutes of the court was not sufficient. State v. Miller, 53 Miss.

Code 1892, § 1436, does not relate to such an amendment. That section of the code refers alone, as its language shows, only to the section which immediately precedes it, covering amendment necessitated by a variance between the indictment and proof, and was passed to meet the case of State v. Miller, 53 Miss. as to that character of amendment. Without legislation authorizing the amendment, even if such legislation be admissible, which appellant denies, the amendment could not be effected, without the consent of the grand jury. If the court orders such an amendment, and fails to have the indictment so changed as to conclude as required by the constitution, the constitution is still violated, because it requires that the indictment shall so conclude. The constitution does not say that the minutes of the court shall so conclude.

4. The indictment is too uncertain, since it charges that the embezzlement was of "a balance of account."

True, it conforms, in that particular, with Code 1892, § 1364, but that section in that particular is unconstitutional. Legislation authorizing such general description of property as mentioned in the first clause of that section has been sustained but that is as far as the courts have gone. No reported case has been found that upholds such general description as is authorized by the last clause of that section, describing the property embezzled as "a balance of account." If that legislation be upheld as constitutional, and the indictment be sustained in that particular, then unquestionably the appellant's motion for a bill of particulars should have been sustained; and, since it was not, the appellant was denied his constitutional right to demand the nature and cause of the accusation against him. State v. Hanaw, 65 N.W. 231; Thalheim v. State, 38 Fla. 169; Rosen v. United States, 161 U.S. 29; State v. Hodson, 66 Vt. 134; People v. McKinney, 10 Mich. 54; 1 Wharton's Crim. Law, sec. 1048. Besides the indictment charges that appellant had in his care or possession, as agent of the bank "a balance of account" of the value of $ 72,000, which "sum of money" or "balance of account" he did embezzle. The thing embezzled was broader than the thing alleged to have been in his care and possession. Which did he embezzle, money or balance of account?

5. The first and sixth instructions given for the state were manifestly wrong and were not cured by any instruction for appellant.

The indictment charges appellant with embezzlement, pure and simple. Fraudulent concealment or secreting of property by an agent is a distinct offense under our statute. Fraudulent conversion by an agent to his own use is likewise a separate and distinct offense; and so is embezzlement which is the fraudulent conversion by the agent to his own use of property in violation of his trust. If fraudulent concealment (without conversion) be a distinct offense under the statute then in these instructions for the state the court authorizes the jury to convict appellant of an offense with which he was not charged. The court virtually told the jury that although the appellant was charged simply with embezzlement, and although under the statute fraudulent concealment of property in violation of his trust was a distinct crime, still if they believe from the evidence that he either fraudulently concealed, or secreted, or converted to his own use the property they should convict him.

George Butler, assistant attorney-general, for appellee.

While it is true that by sec. 169 of our constitution all indictments are required to be concluded "against the peace and dignity of the state" and our court in the cases of Love v. State, 8 So. 465; State v. Morgan, 79 Miss. 659, 31 So. 338; Miller v. State, 81 Miss. 162, 32 So. 951, has construed this provision to extend to and include prosecutions based on affidavits or informations, thereby making such informations of equal dignity with the indictment, and that it is a well established and recognized rule that each count of an indictment must be complete within itself, still this rule refers to matters of substance; that is, the findings of the grand jury which make up and constitute the offense charged, and not the mere legal conclusions deducible therefrom, and formal requisites which may be required by an ancient rule of pleadings or a constitutional provision. It is true that it is stated in 22 Cyc., 249, that by the weight of authority where there are several counts in an indictment, each should conclude with the formal conclusion "against the peace, etc.," yet, upon investigation, it will be seen that the text is neither supported by the larger number of decisions nor the better reasoned cases.

The supreme court of Tennessee in the case of Rice v. State 3 Heisk., 215, holds that it is imperative that all indictments conclude "against the peace and dignity of the state" but that it is sufficient if the whole indictment has this formal conclusion. It is said in that case: "It is held that each count in an indictment must be a complete indictment in itself. This, we think, refers to the description of the offense and not to the formal conclusion." The constitution of Alabama requires that all indictments shall conclude "against the peace and dignity of the State of Alabama" and that court held in the case of McGuire v. State, 37 Ala. 161, that it was not necessary that each count should so conclude. In Texas, which has a similar constitutional provision to that of Mississippi, it has been held that it is not necessary that each count contained in an indictment should conclude "against the peace and dignity of the state" but only that the indictment or information as a whole should so conclude. Alexander v. State, 27...