White v. State

• Decision Date: 10 May 1915
• Docket Number: 776
• Parties: WHITE v. STATE
• Court: Wyoming Supreme Court

147 P. 171

23 Wyo. 130

WHITE v. STATE

No. 776

Supreme Court of Wyoming

May 10, 1915

23 Wyo. 130 at 142.

Original Opinion of March 24, 1915, Reported at: 23 Wyo. 130.

Rehearing denied.

W. B Holliday, on petition for rehearing.

Texas has codified the common law principle that an allegation of cause is essential. (2 L. R. A. N. S. 253). The Terrell case clearly holds that an information charging an offense, as committed on an impossible date, charges no offense; time is an essential ingredient of the offense and must be properly charged. (Ball v. Texas, 35 L.Ed. 385, approved in 41 L.Ed. 301.) Due process of law, as guaranteed by the fourteenth amendment, implies and includes regular allegations. (Den. v. H. L. & I. Co., 18 How 272-286, 15 L.Ed. 376.) An allegation of a future date alleges no offense (Comm. v. Doyle, 110 Mass. 103) and is no bar to another indictment. (State v. Smith, 88 Ia. 178, 55 N.W. 198.) A deficient information invokes the constitutional guaranty whether called to the attention of the trial court, or not. (Man. L. Ins. Co. v. Cohey, 234 U.S. 132; Home for Incurables v. N. Y., 63 L. R. A. 333; McGrew Case, 63 L. R. A. 45, 6 Otto. 432; Montana Railway Co. v. Warren, 34 L.Ed. 681.) Hence the court was without jurisdiction. (Windsor v. McVeigh, 93 U.S. 277.) Federal courts will consider violations of the constitutional guaranty. (Grant Bros. v. U.S. 58 L.Ed. 776.) It is a violation of the due process of law clause of the fourteenth amendment to apply the provisions of Section 6165, Comp. Stat. 1910, to the case at bar; a motion to quash could be sustained only on the theory that the information alleged no offense, hence the trial court proceeded without jurisdiction. (Windsor v. McVeigh, supra.)

OPINION

ON PETITION FOR REHEARING.

Per Curiam.

A petition for rehearing has been filed by the plaintiff in error by which and the brief in support thereof it is again insisted that the information is insufficient to sustain the conviction, for the reason that an impossible date was alleged as the time when the offense was committed. This contention has reference to the statement in the information of the year in which the offense was committed, viz "19013." How the year came to be thus stated is explained in the former opinion. Repeating in substance what was there said, it appears that in preparing the information the prosecuting attorney used a printed form in which the figures "190" were printed in the place for inserting the year, said form having been one no doubt printed and used prior to the year 1910. In filling the blanks left in the form for the date and figures "13" used to indicate the year were inserted in the space left for that purpose following the figures "190," thus making it read literally "19013." It was conceded upon the argument that throughout the proceedings in the district court, including the trial, this date was read as 1913, and the indictment was read as charging the commission of the offense on or about the 13th day of August, A. D. 1913.

In support of the contention that the information charges no offense, because it charges the crime to have been committed upon an impossible date, we are referred to a case which was cited by counsel on the original hearing, viz.: Terrell v. State, 165 Ind. 443, 75 N.E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 A. & E. Ann. Cas. 851, wherein an indictment was held invalid which charged the commission of the crime on the 12th day of July, in the year 18903. Although this case was not cited in the former opinion, we had not lost sight of it, but concluded not to follow it if in point. There are, however, some features which clearly distinguished that case from the case at bar. In the first place a motion had been made to quash the indictment and that motion had been overruled. In this case no objection to the information was made in the trial court prior to verdict. Again, it was sought in that case to bring the original indictment to the attention of the appellate court for the purpose of showing the exact manner in which the date was stated; the opinion stating that the attorney general says: "The court will observe that the copy of the indictment in the record shows the figures 8 and 9 without any space between them. To get at the real cause of this alleged error, it is necessary to examine the original indictment, where the trouble concerning the statement of the date will readily be observed." But the court held that the copy of the indictment as it appeared in the record imported absolute verity, and nothing dehors the record could be resorted to for the purpose of contradicting it. In the case before us the original information is a part of the record. It is not here by copy. Further, it also appears by the record in this case that the defendant below, plaintiff in error here, was first proceeded against by complaint before a justice of the peace and arrested upon a warrant issued by him, who thereupon gave the defendant a preliminary hearing, and finding that the alleged crime of murder had been committed by the defendant, it was ordered that he be held to answer the charge before the district court and he was committed to jail until discharged by due course of law. The complaint filed with the justice by the prosecuting attorney clearly states the date of the commission of the crime as the "13th day of August, 1913." The warrant upon which the defendant was arrested charged the commission of the crime on the same date, and the justice's transcript filed as a part of the record shows that the complaint charged the defendant White with having committed the crime on the 13th day of August, 1913, and that the said magistrate found that the offense charged had been committed by the defendant White "on or about the 13th day of August, 1913, in the county aforesaid." And it was proven on the trial without objection, as stated in the former opinion, that the time of the homicide was August 13, 1913.

In a later case decided by the Supreme Court of Indiana, where there had been no motion to quash the indictment, it was held that a motion in arrest was properly overruled where the indictment alleged the offense to have been committed "on or about December 14, 19012." (Boos v. State 181 Ind. 562, 105 N.E. 117.) The court said: "As alleged, the date is impossible of an act past, but we cannot avoid the fact that an offense which is charged to have been committed was committed prior to the charge being made, and could not in fact have been in the future, or 19012. The statute (Burns 1914, Sec. 2063) provides, among other things, that no indictment shall be set aside or questioned, nor shall the trial, judgment, or other proceeding be stayed, or arrested, for any surplusage or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged. The charge that appellant did then and there unlawfully and feloniously sell and barter, and give away one glass of beer, etc., an act in the past tense, is clearly repugnant to the charge that it was done in December, 19012, if it is not to be treated as a clerical error, for both of which there is authority. (State v. White (1891), 129 Ind. 153, 28 N.E. 425; State v. Patterson (1888), 116 Ind. 45, 10 N.E. 289, 18 N.E. 270; Trout v. State (1886), 107 Ind. 578, 8 N.E. 618.) Again, by statute, the time at which an offense is committed is not material where the time is not of the essence of the offense, or where the time is imperfectly stated on a motion in arrest. (Citing cases.) The offense charged is of a past transaction, and is that of unlawful sale to a minor, and the specific person charged is appellant. The allegation as to time is both surplusage and repugnant to the allegation of a fact in the past, and we are required to view the matter in a common...