The State v. Hinckley

• Decision Date: 01 January 1860
• Citation: 4 Minn. 261
• Parties: STATE OF MINNESOTA vs. MYRON D. HINCKLEY.
• Court: Minnesota Supreme Court

Page 261

4 Minn. 261

(4 Minn. R. p. 345.)

STATE OF MINNESOTAvs.

MYRON D. HINCKLEY.

Supreme Court of Minnesota.

Certified up by district court, Rice County.

Points and authorities for the State: —

1. The authorities cited in support of the principle that a defendant in a criminal action can waive no rights, have no application. A party neglecting to challenge grand or petit jurors at the proper time, or neglecting to object to improper evidence, cannot afterwards be permitted to avail himself of the objection. Commonwealth v. Webster, 5 Cush. 295; Selleck v. S. H. Turnpike Co. 13 Conn. 459; People v. Jewett, 3 Wend. 314; State v. Wolcott, 21 Conn. 280.

2. Points on demurrer: —

First. The first and second grounds of demurrer are untenable. The indictment in these respects is strictly in accordance with the statutes. Comp. Stat. 756, § 76, sub. 1; id. 760, § 77.

Second. The seventh point raised by the demurrer cannot be valid. Bank notes are made subjects of larceny by statute, and a description in the words of the statute is sufficient. They may be described in the same manner as other things which have an intrinsic value, i. e. by any description applicable to them as chattels. 2 Arch. Cr. Pl. 356; Commonwealth v. Richards, 1 Mass. 337; Commonwealth v. Williams, 9 Met. 273; Davis Cr. Jus. 550, forms 6 and 7; id. 553, form 11; id. 554, form 13; People v. Taylor, 3 Denio, 91; Haskins v. People, 16 N. Y. 344.

Third. With reference to the eighth ground of demurrer the indictment is entirely sufficient. The insufficiency of the description as to certain articles has no other effect than to strike them out of the indictment, and the verdict is to be applied to the whole property which is properly and sufficiently charged to be stolen, and for the larceny of such property the punishment is to be awarded. Commonwealth v. Williams, 2 Cush. 582-8; Haskins v. People, 16 N. Y. 344.

Fourth. With respect to the proof of value, proof of value to the owner is sufficient. 2 Russ. on Cr. 124; 3 Greenl. Ev. § 153. The request to describe bank notes was proper. Haskins v. People, 16 N. Y. 348.

Points and authorities for defendant: —

1. The defendant should have been brought into court at the proper time in charge of an officer by order of the judge, on, or without, the suggestion of the prosecuting attorney, and then notified of his rights, and offered an opportunity for the exercise of the same. After being deprived of such opportunity and this right, it was clearly wrong to bring up the defendant into court, and there compel him to answer over to an indictment already found against him by a grand jury and grand jurors, liable, for aught that appears, to have been successfully challenged. In criminal cases, the defendant is not to be presumed to have waived any of his legal rights, and must, therefore, expressly and in unequivocal terms have relinquished his rights, before he shall be adjudged to waive or abandon the same. Commonwealth v. Andrews, 3 Mass. 126; Commonwealth v. Doty, 2 Met. 18; Commonwealth v. Briggs, 5 Pick. 429. Waiving no rights, the defendant protested against these oppressive proceedings at the earliest practicable moment by interposing this motion, which should have been granted, and the indictment set aside and quashed as unauthorized by law, being found and returned in contravention of statutory provisions of public law, and the defendant ordered to go forever acquit thereof. Const. of Minn. art. 1, § 7.

2. The demurrer should have been sustained, the indictment being bad and insufficient in law. As to the first and second points presented by the demurrer, it may be necessary only to observe that there is no such court known to the constitution and laws of this state, as "The district court for the County of Rice;" the term of the court is not stated; nor is it alleged that the grand jury were from that or any other particular county, or that they found their indictment in that court and county; nor does it appear that the indictment was returned to, received, and filed, by its clerk in the district court of the State of Minnesota, fifth judicial district, at a regular term begun and holden at Faribault in the County of Rice, on the first Monday in April, 1860. Coll. Stat. 755, ch. 105, § 64. Thus in larceny the indictment should describe the several species of property, with the value of each and all, with reasonable certainty of identity; and hence, when a "bank note" is the subject of the supposed larceny, it should be laid in the indictment by its distinctive denomination, by what incorporated bank in the state issued, that the same is genuine, and its value; or if it be a "bank note" of a foreign bank, then it should be described by its known denomination, and as purporting to have been issued by such a bank in such a state or county, current within this state by the laws and usages thereof, and its value. To this rule there is one exception or qualification which obtains only, when the prosecutor and witnesses are unable to ascertain the denominations, the "bank note" not having been reclaimed, and so alleged to be unknown to the jury. The eighth point is well interposed by the demurrer.

Tested by the foregoing rules of pleading, this description of the coin as "divers other pieces" of gold coin current within this state, by the laws and usages thereof, and of the aggregate value of four hundred and eighty-three dollars, is bad for uncertainty. In the State v. Murphy, 6 Ala. 845, it is decided that "in an indictment for larceny charging sundry pieces of silver coin made current by law, usage, and custom, etc., amounting to the sum of $530.15, description of the money is insufficient for uncertainty; and that the number and denomination of the coin should be stated." 2 Arch. Cr. Pl. 393, and note.

3. The judge below erred in the admission of evidence at the trial. It is proper and, indeed, indispensably necessary to prove the description of the property, but before that evidence can be received, the description must have first been well pleaded in the indictment; and, that not done, hence the validity of that objection presented by the demurrer, and hence, too, the manifest impropriety in allowing the attorney's question to the prosecutor and his witness — "describe, if you can, any of the bank notes that were stolen from the safe?"

Gordon E. Cole, Attorney General, and T. S. Buckham, for State.

G. W. Batchelder and H. C. Lowell, for defendant.

ATWATER, J.

The defendant was indicted for larceny in the district court for Rice County, and a verdict of guilty was rendered. The case was reported to this court by the judge before whom the cause was tried, in accordance with the provisions of sec. 220, p. 778, Comp. Stat. The record also presents the demurrer to the indictment and certain exceptions to the evidence introduced by the prosecution on the trial of the case.

That part of the indictment necessary to present the points raised, reads as follows, viz.: "The grand jurors for the County of Rice and State of Minnesota, upon their oaths, present that Myron D. Hinckley, on the morning of the 13th day of October, A. D. 1859, with force and arms, at the town of Faribault, in the County of Rice and State of Minnesota, feloniously did steal, &c., &c., divers bank notes, amounting in the whole to the sum of five hundred dollars, and of the value of five hundred dollars." The indictment then goes on to allege the taking a certain quantity of coin, the denominations and value of which are specifically stated, and then avers, "and divers other pieces of gold coin current within this state by the laws and usages thereof, and of the aggregate value of four hundred and eighty-three dollars, feloniously did steal, take, carry away," &c.

One of the points specified in the demurrer to this indictment is, "that it is not therein alleged that this defendant is accused by the grand jury of the County of Rice, by this indictment, of the crime of larceny, or of any other crime." The statute provides (Comp. Stat. 755, § 66) that the indictment must contain: First, the title of an action, specifying the name of the court to which the indictment is presented, and the name of the parties; and, second, a statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." It then goes on to state, that the indictment may be substantially in the form of which examples are given; the commencement of the body of an indictment being, "A. B. is accused by the grand jury of the County of ____, by this indictment, of the crime of," &c. It will be observed that the second clause above quoted, prescribing the requisites of an indictment, is precisely like that prescribing the requisites of a complaint in a civil action. This fact, considered with the forms of the indictment given in the statute conclusively shows, that it was the intention of the legislature to simplify the pleadings in criminal as well as civil actions, and do away with the technicalities and repetitions which had obtained, and been more or less held necessary, under the former practice. When a question arises as to the sufficiency of an indictment, the test to be applied is, whether it substantially conforms to the provisions of section 66 of the statute above quoted, and not whether it conforms to the precedents given in the subsequent section.

This indictment, in the commencement of the body of the same, is not in accordance with the form given in the statute, and in departing from the form there given, the pleader has not improved upon the language of the precedent. But we think the indictment substantially complies with the requirements of section 66. The word "present," which has been used in this indictment, is the usual and appropriate word employed in a presentment, as defined in sec. 33, of ch. 104, p. 752,...