State v. Thompson

• Decision Date: 13 July 1891
• Citation: 27 P. 349,10 Mont. 549
• Parties: STATE v. THOMPSON.
• Court: Montana Supreme Court

27 P. 349

10 Mont. 549

STATE v. THOMPSON.

Supreme Court of Montana

July 13, 1891

Appeal from district court, Jefferson county; WILLIAM H. HUNT Judge.

George F. Thompson was convicted of the crime of rape, and he appeals. Affirmed.

This is an appeal by the defendant from a judgment on conviction for the crime of rape. Three points are relied upon by the appellant, which may be stated as follows: (1) The indictment, in charging the time of the commission of the offense, uses this language: "On or about the 12th day of April, A. D. 1889." The criminal practice act of this state declares: "Sec. 166. The precise time of the commission of an offense need not be stated in the indictment, but it is sufficient if it is shown to have been before the finding of the indictment, and within the statute of limitations, except where time is an indispensable ingredient of the offense." The appellant contends that notwithstanding this statute, the allegation "on or about" is insufficient, and renders the indictment fatally defective. (2) That there is a fatal variance between the name of the person upon whom the offense is charged to have been committed, as set out in the indictment and the proof on the trial of the cause. The name of the injured person is written in the indictment "Ellen Souderland." What appeared as to her name on the trial is as follows: She testified, "My name is Ellen Soderland." The reporter adds, "Given as she spelled it." There is nothing here in the record to indicate which of the English sounds of the letter "o" was used, or whether the sound was a Swedish one, to which race the witness belonged. Again, in the evidence she speaks of her name as "Soderland," and mentions her brother and sisters as "Soderland," that is to say, so the name is written in the record, but with no information as to the sounds of the letters. Again the record states that the father of the girl, "C. W Saderlund," as the reporter writes it, testified as follows: "Question. What is your name? Spell it. Answer. C. W. Saderlund. In English, I spell it 'Sonderlund.' Q. How do you spell your name in English? A. 'Sonderlund,' and pronounce the same. Q. How do you pronounce it in your own language? A. 'Soederland.' Q. I will ask you this question. If the diphthong 'o' is not a combination of the vowels 'oe'; is it 'o' with two dots over it? A. I can't say about that. Q. Would it be correct to spell your name in Swedish this way, (handing witness paper on which the name is spelled 'Soederland?') A. Yes, sir. Q. Is that the way you spell it in Swede? A. No, sir." The court then adds in the bill of exceptions: "The difference in sound between the name used in the indictment and that given upon repeated pronunciations by the witnesses on trial warranted the court in submitting the question of idem sonans to the jury. Both witnesses were Swedes, and spoke with marked accents." Again, a doctor who testified called her "Soderlund." The defendant moved for his discharge, upon the ground of a variance between the indictment and the proof, as to the name of the injured person. The court refused to discharge the defendant, but submitted to the jury the question whether the name as found in the indictment was idem sonans with that described in the proof. The following was the instruction: "The name of the prosecutrix is a material averment of the indictment in this case, and the court instructs you that " idem sonans" means "of the same sound." If the difference (if you find from the evidence that there is any difference at all) in sound of the name of the prosecuting witness as laid in the indictment, and as proved, is so slight that the ear cannot readily detect the difference, if any there is, in the pronunciation of the two names,--the name as charged in the indictment and the name as proved by the evidence,--then the names are said to be idem sonans. But if you find from the evidence that the name as charged in the indictment, when pronounced in the English language, differs materially in sound from the name of the prosecuting witness as proven on the trial, according to the English pronunciation, then the two are not idem sonans, and this is a fatal variance, and the defendant must be acquitted. Whether there is such a material difference or not is a question for you to determine from all the evidence in the case." The appellant insists that the names by the ordinary rules of English spelling are so dissimilar that the court should have pronounced them not to be idem sonantes, and it was error to submit the question to the jury. (3) In addition to his plea of not guilty, the defendant pleaded former conviction. The court instructed the jury that by the laws of the state, and under the records in evidence, there had been no jeopardy which entitled the defendant to an acquittal under this plea, and that on the issue of former conviction the jury should find for the state. The facts upon which defendant based his plea were shown upon the trial to be that a former trial was had February 21, 1890, on which defendant was found guilty, and sentenced to confinement for 17 years in the penitentiary. On April 15, 1890, defendant himself moved for a new trial, which motion was granted by the court May 6, 1890. The new trial so applied for and granted was had January 6, 1891, and from the judgment on conviction on that trial the defendant is now appealing to this court. Appellant refers us to section 18, art. 3, Const.: "No person shall be compelled to testify against himself, in a criminal proceedings, nor shall any person be twice put in jeopardy for the same offense." In the criminal practice act we find the following: Chapter 13 defines a new trial, and the grounds upon which it shall be granted, and the procedure by which it may be obtained; and section 352 says: "The granting of a new trial places the parties in the same position as if no trial had been had. The former verdict cannot be used or referred to, either in the evidence or the argument." Appellant contends that the statute cited attempts to make nugatory the constitutional provision quoted above, and that the statute, in attempting to abridge the constitutional right, is unconstitutional and void; that is to say, that, under the constitution, a defendant once convicted, and obtaining a new trial, upon his own application, as in the case at bar, can plead the former conviction in bar; section 353, Crim. Prac. Act. to the contrary notwithstanding.

Word & Smith and H. R. Melton, for appellant.

H. J. Burleigh, Co. Atty., and Henri J. Haskell, Atty., Gen., for the State.

DE WITT, J., (after stating the facts as above.)

The first question which we meet is whether, under our statute section 166, Crim. Prac. Act, the allegation of time "on or about the 12th day of April, A. D. 1889," is sufficient. The obnoxious words, in appellant's view, are "on or about." Appellant argues that a single certain day must be laid in the indictment, although the proof is sufficient if it bring the offense within the statute of limitations. Appellant cites from Archbold's Criminal Practice & Pleadings, (page 275:) "Formerly, the indictment must have stated, either expressly or by way of reference, the day, month, and year on which each material fact stated in it took place; otherwise the indictment would be had." He refers us to Whart. Crim. Law § 261: "Time and place must be attached to every material fact averred, but the time of committing an offense (except where the time enters into the nature of the offense) may be laid on any day previous to the finding of the bill, during the period within which it may be prosecuted." He cites Judge DEADY, district of Oregon, in U.S. v. Winslow, 3 Sawy. 337, as follows: "Every indictment must allege a day and a year certain on which the offense was committed. 1 Bish. Crim. Law, § 239. This is the common-law rule. The Code of Criminal Procedure of this state, which has been adopted by this court as a rule of practice, does not change the law. On the contrary, the form of an indictment given in section 70 indicates an absolute averment as to the time of committing the offense. An allegation that a crime was committed 'on or about' a certain day does not show but the action is barred by the lapse of time." Consulting the Criminal Code of Oregon, to which Judge DEADY refers, we find that section 70 gives a form of indictment, in which the required allegation of time is set out in the following words: "The said A. B., on the ___ day of ___ 18--." As Judge DEADY says, the form indicates an absolute averment as to the time of committing the offense. But, on the contrary, the statute of this state does seem to change the common-law rule. Instead of indicating an absolute averment of time, it says that the precise time need not be stated. Appellant cites Roberts v. State, 19 Ala. 526. But in that case the indictment stated no time whatever. The same is true in Erwen v. State, 13 Mo. 306; People v. Lafuente, 6 Cal. 202, presented by appellant as authority, simply holds that, "a particular day having been laid on which the offense is charged to have been committed anterior to the finding of the indictment, there is no necessity for an averment that the crime was committed before the bringing of the indictment." Another case is State v. Hanson, 39 Me. 337, wherein the averment of the indictment was that the defendant appeared before the court, during a certain term named, and there made false answers, without stating any month, or day of the month, during that term, when those answers were made. The prosecution was for perjury, and the indictment was held to be defective in not stating time. We have referred to these cases which appellant has pressed upon our consideration as authority for...