State v. McDaniel

• Decision Date: 22 September 1902
• Citation: 54 A. 1056,20 Del. 96
• Court: Court of General Sessions of Delaware
• Parties: STATE v. SAMUEL A. McDANIEL, EVAN G. BOYD, HARVEY B. WIGGLESWORTH and WALTER RASH

54 A. 1056

20 Del. 96

STATE v. SAMUEL A. McDANIEL, EVAN G. BOYD, HARVEY B. WIGGLESWORTH and WALTER RASH

Court of General Sessions of Delaware, New Castle County

September 22, 1902

Court of General Sessions, New Castle County, September Term, 1902.

The defendants were indicted at the May Term, 1902, for OBTAINING MONEY BY FALSE PRETENSES. The indictment contained two counts. The first count was as follows:

"THE GRAND INQUEST OF THE STATE OF DELEWARE and the Body of New Castle County, on their oath and affirmation, respectively DO PRESENT:

"That Samuel A. McDaniel, of the Hundred of New Castle, Harvey B Wigglesworth, of the Hundred of Wilmington, and Walter Rash of the Hundred of Wilmington, all in the County of New Castle and the State of Delaware, on the 31st of March in the year of our Lord one thousand nine hundred and one, at New Castle Hundred in the County of New Castle aforesaid, he the said Samuel A. McDaniel, then and there being the Sheriff of said County of New Castle, and he the said Harvey B. Wigglesworth then and there being a warden in the county jail for said county and a deputy under him, the said Samuel A. McDaniel, Sheriff, as aforesaid, and the said Walter Rash, then and there being a warden in the said county jail and a deputy under him, the said Samuel A. McDaniel, Sheriff as aforesaid, and he the said Evan G. Boyd, then and there being Mayor of the City of New Castle in said county, and being persons of evil minds and dispositions, with force and arms, unlawfully and wickedly did conspire, combine, confederate and agree together, by certain false pretenses unlawfully to obtain for the use and benefit of the said Samuel A. McDaniel, from a certain Horace G. Rettew, the said Horace G. Rettew then and there being the Receiver of Taxes and County Treasurer of the County of New Castle aforesaid, a large sum of money, to wit, the sum of two thousand five hundred dollars, lawful money of the United States of America, the kind and denomination of which money is to the jurors aforesaid unknown, of the money, goods and chattels then and there, the property of and in the ownership, possession and control of him the said Horace G. Rettew, Receiver of Taxes and County Treasurer for said New Castle County as aforesaid: the which said false pretenses, in pursuance of and according to the said conspiracy, combination, confederacy and agreement of the said Samuel A. McDaniel, Harvey B. Wigglesworth, Walter Rash and Evan G. Boyd so had as aforesaid, were thereafter, on and about the 30th of June, 1901, at the county aforesaid, embodied in a certain false, deceitful, fraudulent and padded bill of the said Samuel A. McDaniel as Sheriff as aforesaid for the three months ending on the said 30th day of June, A. D. 1901, which said false, deceitful, fraudulent and padded bill was in due course then and there presented by the said Samuel A. McDaniel as Sheriff as aforesaid to George D. Kelley, County Comptroller for the County of New Castle as aforesaid, and to the Levy Court Commissioners of New Castle County aforesaid, for the purpose of then and there obtaining the approval thereon by the said Comptroller for said county and by the said Levy Court Commissioners for said county, and the consequent payment thereof then and there out of the funds and moneys which were then and there the property of and in the possession, ownership and control of him the said Horace G. Rettew, Receiver of Taxes and County Treasurer for said county, and by which said false, deceitful, fraudulent and padded bill was then and there falsely, untruly, fraudulently and knowingly stated and set forth the pretended and therein alleged number of vagrants lodging and prisoners being and remaining in the jail of New Castle County from day to day in and during the three months ending on the said 30th day of June, A. D. 1901, with intent then and there by means of the said false pretenses to cheat and defraud the said Horace G. Rettew, Receiver of Taxes and County Treasurer of said county as aforesaid of the said sum of money, to the evil example of all others in like case offending, and against the form of an act of the General Assembly in such case made and provided, and against the peace and dignity of the State."

The second count differed from the first only in that it set forth, after the charge that the defendants "did conspire, combine, confederate and agree together,"--the words "and with other evilly disposed persons whose names are to the jurors aforesaid unknown."

Counsel for defendants gave notice that they would move to quash the indictment and if that was refused they would move the Court to order the Attorney-General to file a bill of particulars.

The Attorney-General asked that both the motion to quash the indictment and the motion for the bill of particulars be reduced to writing and that the counsel for the defendants furnish the State with a copy of the same.

LORE, C. J. :--We think that the application for a bill of particulars ought to be in writing and ought to point out fully all the particulars you desire. And it should be filed in the Court of General Sessions.

Mr. Higgins:--Has the Court ruled whether we should set out the reasons in our motion to quash?

LORE C. J.:--

While it would be a good practice and would probably shorten the matter to specify to what particular defect you object in the indictment, yet I know of no rule requiring the reasons to be set out in a general motion to quash. Such motion goes simply to the face of the indictment which discloses whatever defects there may be and of which the framer is bound to take notice.

MOTION TO QUASH INDICTMENT.

Counsel for defendants moved to quash the indictment as insufficient.

First. Because it failed to allege the facts more particularly set forth and asked for in defendant's motion for a Bill of Particulars filed in this cause, and which need not be repeated here.

The gravamen of the conspiracy to quash any indictment against the defendants is that they conspired to obtain from the Receiver of New Castle County, certain moneys, which false pretenses were "embodied in a certain false, deceitful, fraudulent and padded bill of the said Samuel A. McDaniel, Sheriff, as aforesaid, for the three months ending on the said 30th day of June, 1901;" which bill in due course was presented by the said sheriff to the County Comptroller and to the Levy Court Commissioners of New Castle County, for the purpose of obtaining the approval of the Comptroller and of the Levy Court Commissioners and the consequent payment of such moneys from the said Rettew.

"In which said false, deceitful, frandulent and padded bill was then and there falsely, untruly, fraudulently and knowingly stated and set forth the pretented and therein alleged number of vagrants lodging and prisoners being and remaining in the jail of New Castle County from day to day in and during the three months ending on the said 30th day of June, A. D. 1901."

The same objection applies to both counts of the indictment as the only difference between them is that the second count alleges that the defendants conspired with other persons to the jurors unknown.

The indictment proceeds upon the admission that the Sheriff is entitled under the law to certain compensation for food and lodging furnished by him to vagrants committed to his custody, which is undoubtedly true.

In an indictment for conspiracy to commit an act which is a crime at common law, it is not necessary to describe the unlawful act further than by its specific name.

The present case, however, charges a conspiracy to commit a crime which is rarely statutory and not a crime at common law, inasmuch as obtaining money under false pretenses is not a crime at common law, and is made so only by the statute of Delaware.

The indictment charges, first, a conspiracy.

Second. The object of the conspiracy was, to wit, by certain false pretenses, to obtain for the use of Samuel A. McDaniel, from Horace G. Rettew, Receiver of Taxes, Two Thousand Five Hundred Dollars.

Third. The means by which the conspiracy was said to be effected and the false pretenses worked, namely by a certain false and padded bill.

Fourth. That the false pretenses contained in the bill presented to the Comptroller and to the Levy Court Commissioners, contained a larger number of vagrants lodging and prisoners in the jail during the three months in question than were really there.

The point of our objection to the indictment under this head is that it fails entirely to specify the names and dates of said vagrants which the State claims to have been untruthfully and falsely contained in said bill.

It will be observed that the bill is alleged not only to have been false and fraudulent, but to have been false and fraudulent because of having been "padded."

On the other hand the term "padded" is subject to exception in an indictment as entirely wanting in particularity.

What does "padded" mean?

As used in the indictment it is clearly "mere slang." But, taken in the meaning attributable to it when used as slang it would mean that the said bill was good in part, and bad in part. That it contained the names of certain vagrants who were in the jail during the three months and also the names of certain other vagrants who during the three months were not in the jail, and it is on the theory that this is true, that we discuss the question of the insufficiency of the indictment.

In England it is undoubtedly the law that an indictment for conspiring to obtain goods or money by false pretenses need not specify the means by which the conspiracy was to be effected.

Rex vs. Dill, 2 B. & Ald., 204; Rog. vs. Comperts, 9 A. P. & E. N. S., 824, 838, (58 Eng. Com. L.); Rex vs. King, 7...