State v. Woolsey

• Court: Supreme Court of Utah
• Writing for the Court: BASKIN, J.
• Citation: 57 P. 426,19 Utah 486
• Parties: THE STATE OF UTAH, RESPONDENT, v. WILLIAM H. WOOLSEY, APPELLANT
• Decision Date: 01 June 1899

57 P. 426

19 Utah 486

THE STATE OF UTAH, RESPONDENT,
v.
WILLIAM H. WOOLSEY, APPELLANT

Supreme Court of Utah

June 1, 1899

Appeal from the sixth District Court, Kane County, Hon. W. M. McCarty, Judge.

Defendant was convicted of grand larceny. A demurrer was filed in the court below, on two grounds: First, that the facts stated did not constitute a public offense; second, that it does not substantially conform to the requirements of Secs. 4731 and 4732, R. S. 1898, in that it does not allege a day certain on which the offense is alleged to have been committed. The demurrer was overruled by the court below. After conviction and before sentence a motion in arrest of judgment was made on the same grounds as the demurrer. The action of the court in overruling the demurrer and refusing to arrest the judgment is assigned as error.

Judgment affirmed.

E. E. Hoffman, Esq., for appellant.

That Sections 4359, 4360, R. S., repeal the third subdivision of Sec. 4643, Comp. L., relating to stealing of cattle where no value is mentioned. Wharton Cr. Pl., Sec. 215; 2 Bishop Cr. Pl., Sec. 713; State v. Young, 43 P. 881.

But there can be no judgment unless the law was in force at the time of the indictment and judgment. Suth. Stat. Const., Sec. 166, p. 224; Hartung v. Peo., 22 N.Y. 95; Butler v. Palmer, 1 Hill, 324; Bishop St. Ct., 181, 183.

As to the sufficiency of the allegation "on or about the 15th day of June, A. D. 1896."

Every indictment must allege a day and a year certain on which the offense was committed, and on or about is insufficient. U.S. v. Winslow, 3 Sawy., 337; 1 Bish. Crim. Law, Sec. 239; Territory v. Armijo, 7 N. M., 571; Heard Crim. Proc., Sec. 70; Bishop Crim. Pl., 390, 391, and cases cited; Rapalye Crim. Pl., Sec. 95; People v. Miller, 12 Cal. 294.

The defendant was not present when his demurrer to the indictment was submitted to the court and overruled. His presence was necessary and can not be waived by himself or his counsel. Gore v. Arkansas, 5 L.R.A., 834 (see note); Rev. St., 4811; Territory v. Day, 2 Okl., 409; Le Roy v. Territory, 3 Okl., 596; State v. Clifton, 57 Kan. 448; State v. Myrick, 38 Kan. 238; Territory v. Lopez, N. M., 156; Smith v. People, 8 Col., 457; Hopt v. Utah 4 S.Ct. Rep., 204.

Hon. A. C. Bishop, Attorney-General, and William A. Lee, Deputy Attorney-General, for respondent.

Under the third subdivision of Sec. 4643, C. L., the doing of any one of a series of acts therein mentioned, constituted grand larceny, and by the change made in the Revised Statutes, the doing of any one of these acts was reduced to the grade of petit larceny. Section 2485, R. S., reads as follows:

"No offense committed, and no penalty or forfeiture incurred under any statute hereby repealed, and before the repeal takes effect, shall be affected by the repeal, except that where the punishment, penalty, or forfeiture, is mitigated by the provisions herein contained, such provisions shall be applied to a judgment to be pronounced after the repeal." People v. Idaho Bill, 2 Utah 326.

As to the point that the allegation in the indictment as to time is not sufficient when demurred to, we call attention to Sec. 4737, R. S.

The expression "on or about the 15th day of June" is one in common use and of common understanding. While the indictment is rather loosely drawn in this respect, and would not be considered good at the common law, it would seem under the above statute, to be sufficient. Time is not of the essence of the offense, and, therefore, a day certain need not be alleged. State v. Swayne, 97 Carolina, 462; State v. Davis, 6 Paxt. (Tenn.), 605; State v. Gibbs, 6 Paxt. (Tenn.), 238.

An indictment alleging that the offense was committed "on or about" a day named has been held to be sufficient under statutes similar to ours. State v. Thompson (Mont.), 27 P. 350, and cases cited; People v. Aro., 6 Cal. 207; Farrell v. State, 45 Ind. 371; Hardibeck v. State, 10 Ind. 459; Hampton v. State, 8 Ind. 337; Coakley v. State, 4 Iowa 474; State v. Mc Nichol, 34 Tex. 676; State v. Hill, 34 Tex. 623; State v. Elliott, 34 Tex. 148; Fish v. Manning, 31 F. 340.

Mr. Bishop, in his work on Criminal Procedure, in discussing this question, lays down the following rule:

"If we look upon all the cases as correctly decided, they furnish no absolutely uniform rule as to whether or not the prisoner must be present at the hearing of a motion. But if it relates to a mere matter of law, or if in any other form a question simply of law is agitated, the better doctrine both in reason and authority is, that he may be absent at the argument unless the court sees fit to require his presence."

BASKIN, J. BARTCH, C. J., concurs. MINER, J., dissents.

OPINION [57 P. 427]

[19 Utah 490] BASKIN, J.

The defendant, William H. Woolsey, was convicted of grand larceny on the 2d day of December, 1898, and was sentenced to the penitentiary for a term of one year.

The defendant demurred to the indictment on two grounds: "1st. That the facts stated do not constitute a public offense. 2d. That it does not substantially conform to the requirements of section forty-seven hundred thirty-one and forty-seven hundred thirty-two, in this: that it does not allege a day...