State v. Davis

• Decision Date: 08 June 1916
• Docket Number: No. 462-471.,462-471.
• Citation: 97 A. 818,39 R.I. 276
• Parties: STATE v. DAVIS et al.
• Court: Rhode Island Supreme Court

97 A. 818

39 R.I. 276

STATE

v. DAVIS et al.

No. 462-471.

Supreme Court of Rhode Island.

June 8, 1916.

Case Certified from Superior Court, Providence and Bristol Counties.

Jacob Irving Davis and Alfred W. Quigg were indicted for embezzlement. Defendant Quigg filed motions to quash the indictments as to him, and the questions arising on such motions are certified to the Supreme Court. Questions answered in opinion.

Antonio A. Capotosto, Second Asst. Atty. Gen., for the State. Philip S. Knauer, Joseph J. Cunningham, and John J. Fitzgerald, all of Providence (Walter J. Ladd, of Providence, of counsel), for defendant Quigg.

BAKER, J. These are 10 indictments for embezzlement against Jacob Irving Davis as principal and Alfred W. Quigg as accessory before the fact. They have already been before this court for the determination of certain questions raised by motions of the defendant Quigg to dismiss the indictments, which questions were certified to this court under the provisions of section 5 of chapter 298 of the General Laws. The answers to these questions appear in the opinion of this court as reported in 37 R. I. 373-392, 92 Atl. 821. After the papers in the cases were sent back to the superior court for further proceedings, the defendant Quigg then filed in each case a motion to quash the indictment as to him on the ground that section 18, c. 345, of the General Laws, under which all the indictments are drawn, is unconstitutional and void as being in violation of article 1, § 10, of the Constitution of Rhode Island and of section 1, art. 14, of the Amendments to the Constitution of the United States, in this, that:

"First. Said statute authorizes the finding of the present indictment against the defendant in such general terms that if does not inform this defendant of the offense for which he is to be tried, and said statute does not provide any method by which this defendant can demand as a matter of right to be informed of the nature and cause of the accusation against him in said indictment.

"Second. Because said statute authorizes the finding of the present indictment against this defendant in such general terms that it does not inform him of the nature or cause of the accusation against him without provision being made in said statute or in any other statute that the defendant may, as a matter of right, demand such information by bill of particulars, or compulsory process, or otherwise.

"Third. Because an act of the court in forcing this defendant to proceed to trial upon this indictment before he is properly informed of the criminal act or acts for which he is to be tried thereunder is an act in violation of due process of law and against the law of the land and void."

Under the provisions of section 1 of chapter 298 of the General Laws these questions have been certified to this court.

While the second ground by use of the words "without provision," following and in connection with a negative statement, seems to be obscurely expressed, we assume that by omitting the words from "without" to "other statute," both inclusive, and inserting in place thereof the words, "and neither it nor any other statute makes provision," we would have an expression of what is intended, and we so interpret the meaning of the "second" ground.

These grounds seem to involve these points, namely, that section 18, c. 345, of the General Laws violates section 10, art. 1, of our state Constitution, in that: (l).The defendant is not "informed of the nature and cause of the accusation" against him by the indictments drawn in accordance with said section 18; (2) that there is no statutory provision by which he may, as a matter of right, demand to be so informed by bill of particulars or otherwise; and (3) that it is a violation of the "law of the land" clause of said section 10, and also of the "due process of law" clause of section 1, art. 14, of Amendments to the Constitution of the United States. They have reference only to the portion of the indictments charging the crime against, the principal in so far as that is an essential part of the indictments against him as accessory. Section 18, c. 345, of the General Laws is quoted in full in State v. Davis and Quigg, 37 R. I. 370, 92 Atl. 821, and so much of the indictment as charges Quigg as an accessory is there given. That part of the indictment which charges Jacob Irving Davis with embezzlement in C. Q. No. 462 is as follows:

"That Jacob Irving Davis, of Providence in said county of Providence, on the second day of November in the year of our Lord one thousand nine hundred and seven, with force and arms, at Providence in the aforesaid county of Providence, being then and there the officer, clerk, and agent of the Grand Lodge of the Ancient Order of United Workmen of Rhode Island, a corporation duly chartered and organized under the laws of the state of Rhode Island, did then and there, by virtue of his said employment have, receive, and take into his possession money to a large amount, to wit, to the amount of $4,000, and of the value of $4,000, of the property and money of the said the Grand Lodge of the Ancient Order of United Workmen of Rhode Island, a corporation as aforesaid, the said Jacob Irving Davis' employer, and the said Jacob Irving Davis the said money then and there feloniously did embezzle and fraudulently convert to his own use, without the consent of the said the Grand Lodge of the Ancient Order of United Workmen of Rhode Island, a corporation as aforesaid, the said Jacob Irving Davis' employer, whereby and by force of the statute in such case made and provided, the said Jacob Irving Davis is deemed guilty of larceny, and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Jacob Irving Davis, then and there in manner and force aforesaid, the said money of the property and money of the said the Grand Lodge of the Ancient Order of the United Workmen of Rhode Island, a corporation as aforesaid, the said Jacob Irving Davis' said employer, from the said the Grand Lodge of the Ancient Order of United Workmen of Rhode Island, a corporation as aforesaid, feloniously did steal, take, and carry away, * * * against the form of the statute in such case made and provided, and against the peace and dignity of the state."

The other nine indictments are the same except as to the date.

Taking up the point relating to the information to be given as to the nature and cause of the accusation, the common law required that all the elements of, or facts necessary to, the crime charged should be fully and clearly set out in the indictment In Bishop's New Criminal Procedure, vol. 1, § 325, 2, the rule as to the certainty required in an indictment is thus stated:

"It is that every fact in law essential to the punishment shall be plainly and directly stated in terms sufficiently minute and technical to identify the offense and the offender, disclosing prima facie guilt, but not necessarily anticipating any defense."

Our Constitution requires no greater certainty in criminal pleading than the common law, and perhaps less. In State v. Murphy, 15 R. I. 543, 546, 10 Atl. 585, 587, in considering the constitutionality of section 15, c. 596, of the Public Laws, passed May 27, 1886, regulating the sale of intoxicating liquors, Durfee, C. J., in speaking for the court said:

"The Constitution, art. 1. § 10, declares that in all criminal prosecutions the accused shall enjoy the right 'to be informed of the nature and cause of the accusation.' Section 15 violates this provision if the complaint which it sanctions fails to inform the accused of 'the nature and cause of the accusation.' but not otherwise. The technical precision of the common-law rule is not exacted."

What are the essential elements of the crime of embezzlement? In Roscoe's Criminal Evidence, 439, referring to a prosecution for embezzlement under section 48, c. 29, St. 7 and 8 George IV (cited in State v. Davis and Quigg, supra, 37 R. I. 385, 92 Atl. 821, as the prototype of our said section 18) the author says:

"The prosecutor must prove first, that the prisoner was a clerk or servant, or a person employed for the purpose or in the capacity of a clerk or servant and that by virtue of such employment he received the money, etc.; second, that he received or took into his possession some chattel, money, or valuable security for or on account of his master; and, third, that he fraudulently embezzled the same, or some part thereof."

It is obvious on inspection that all of these things necessary to be proved are clearly alleged in each indictment, namely, the fiduciary relation existing between Davis and the corporation employing him; that the property came into the possession of Davis by virtue of his said employment, that the property belonged to the employer of Davis, and that Davis feloniously embezzled and fraudulently converted said property to his own use without the consent of the owner, his employer. Each indictment also states the value of the property embezzled and the place of embezzlement, thus showing that the crime is being prosecuted in the court having jurisdiction thereof, and in the proper county. Each indictment also alleges the time at which the offense was committed. Nevertheless, while a date must be named for the commission of the offense, yet when time is not material, as it is not in most common-law offenses, the rule is that it need not be proved as laid, but some date before the finding of the indictment must be shown, and one within the period of the statute of limitations for finding the same, if such statute there be. 22 Cyc. 446; Bish. New Crim. Proc. vol. 1, § 400; Wharton's Crim. Pl. & Pr. § 120; Rosc. Crim. Ev. 110. This rule of pleading applies to the statutory crime of embezzlement. State v. Cushing, 11 R. I. 313, 316. Under this rule of criminal pleading, recognized and established by the common law, a defendant might urge as is done in the present cases...