State v. Henn
| Decision Date | 28 November 1888 |
| Citation | 40 N.W. 564,39 Minn. 464 |
| Parties | STATE v HENN. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
There being under section 415 of the Penal Code several distinct acts or ways by which a person may commit or be guilty of larceny, some of which were not larceny at common law, the indictment should charge the act constituting the alleged larceny so as to inform the accused in which one of these different ways he is charged with having committed the offense. An indictment for larceny in the common form could not be sustained by proof that the defendant obtained the property by false pretenses or a false token.
Where the false token is a written instrument, it need not be such as, if genuine, would be of legal validity. The rule is otherwise in forgery.
An objection to an indictment on the ground of duplicity should be taken by demurrer, or by motion on the trial to compel the prosecution to elect on which charge he will proceed. It cannot be taken by objection to the admission of any evidence under the indictment.
If an indictment attempts to charge two offenses, but one of them insufficiently, it is not, therefore, double; to be so, it must set out each sufficiently.
Appeal from district court, McLeod county; EDSON, Judge.
Indictment of Joseph A. Henn for grand larceny in the second degree. Defendant was convicted, and he appeals.
J. V. V. Lewis and R. H. McClelland, for appellant.
Moses E. Clapp, Atty. Gen., and G. M. Nelson, Co. Atty., for the State.
Defendant was indicted, under section 415 of the Penal Code, for the crime of grand larceny in the second degree. The allegations of the indictment are that the defendant willfully, maliciously, and feloniously, by reason of a false token and writing, to-wit, a false and forged elevator ticket, which had theretofore been made by the defendant, (and which is set out in the indictment according to its tenor,) obtained of Sylvester Strong and H. Miller the sum of $25.83 in money, (described,) of the value of $25.83, and the property of Strong and Miller, and appropriated the same to his own use. Objection is taken to the sufficiency of the indictment; that the instrument set out, and which constituted the alleged false token, does not on its face purport to have any legal validity; and the contention is that the instrument must appear on its face to be one which, if true, would possess some legal validity, or facts must be alleged which will enable the court to see that, if it were genuine, it would possess such validity; and in support of this proposition we are referred to State v. Wheeler, 19 Minn. 98, (Gil. 70.) There is nothing in this point. The counsel has confounded the rule of pleading in an indictment for forgery with that in an indictment for obtaining property by a false token, and which is now made larceny under the Penal Code. When the false token is a written instrument, it need not be such as, if genuine, would be of legal validity. The rule is otherwise in forgery. 2 Bish. Crim. Law, § 158.
A further objection made to the indictment is that it charges two distinct offenses, forgery and larceny, and is therefore bad for duplicity. If this were true, no proper objection was taken to it. Such an objection can only be taken by demurrer, or by motion on the trial to compel the prosecution to elect on which charge he will proceed. In this case the only way it was attempted to be raised was by objection to the admission of any evidence under the indictment. Clearly, however, the indictment was not liable to the objection of duplicity. The only offense it attempts or assumes to charge is larceny committed by obtaining money by a false token. It does not...
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State v. Clark
...have held that where an indictment charges two offenses, but one inadequately, the latter may be disregarded as surplusage. State v. Henn, 39 Minn. 464, 40 N.W. 564. Here the information tells the defendant in clear and concise language that at a certain time and place he did 'utter and dis......
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State v. Isaacson
... ... for not more than one year, or by fine of not more than five ... hundred dollars." G.S. 1913, § 8907 ... The ... objection that the indictment charged two offenses and was ... bad for duplicity was waived by failing to demur to it on ... that ground. State v. Henn, 39 Minn. 464, 40 N.W ... 564; State v. Briggs, 84 Minn. 357, 87 N.W. 935; ... State v. Kunz, 90 Minn. 526, 97 N.W. 131 ... The ... objection urged against the indictment at the trial and here ... is that it nowhere states that the debt secured by the ... chattel mortgage ... ...
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State v. Isaacson
...that the indictment charged two offenses and was bad for duplicity was waived by failing to demur to it on that ground. State v. Henn, 39 Minn. 464, 40 N. W. 564;State v. Briggs, 84 Minn. 357, 87 N. W. 935;State v. Kunz, 90 Minn. 526, 97 N. W. 131. The objection urged against the indictment......
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State v. Owens, 39207
...have held that where an indictment charges two offenses, but one inadequately, the latter may be disregarded as surplusage. State v. Henn, 39 Minn. 464, 40 N.W. 564. Here the information tells the defendant in clear and concise language that at a certain time and place he did 'utter and dis......