State v. Gove and Wife; State v. Card

State v. Gove and Wife. — State v. Card.

Where the words of the statute are descriptive of an offence, the indictment must follow the language of the statute, and expressly charge the respondent with the commission of the described offence in the words of the statute, or their equivalents, else it will be defective.

Where a particular intent is essential to constitute a crime, that intent must be distinctly averred in the indictment.

Where a statute makes criminal the doing of the act, “ willfully and maliciously,” it is not sufficient for the indictment to charge that it was done “feloniously and unlawfully,” or “feloniously, unlawfully and willfully these latter terms not being synonymous, equivalent, of the same legal import, or substantially the same as “ willfully and maliciously.”

Defective description of the offence charged is not one of the points in which an indictment is cured by a verdict, but the same is equally fatal upon a motion in arrest of judgment, as upon demurrer, or a motion to quash.

Where an offence, as described in the indictment, is punishable at common law only, although the indictment aver it to have been committed against the form of the statute, the conclusion may be rejected as surplusage, and the indictment be good as for a common law offence.

But when, what was a misdemeanor only at common law, is made punishable as a felonj-by statute, or where the statute declares a common law offencej committed under peculiar circumstances and with a particular intent, not necessarily included in the original offence, punishable in a different manner from what it would be without such circumstances and intent, an indictment for the statute offence, bad as such for insufficient or defective description, will not be good at common law.

State v. Gove and Wife.

Indictment, containing two counts. Tbe first count alleged that the defendants, on the 7th of May, 1856, at Somersworth, in this county, “ with force and arms feloniously and unlawfully did set fire to, burn and consume a certain building of Stephen S. Chick and George W. Wendell, called a store,” not being a dwelling-house, &c.

The second count was like the first, except that the building was described as a warehouse. It was not alleged in either ‘count that the act was done by the defendants “ willfully” or “ maliciously.”

The defendants were tried on the plea of not guilty, and the jury returned a verdict of guilty against them both.

The defendants moved in arrest of judgment, because the indictment did not allege, in the terms of the statute, that they burnt the building “ willfully and maliciously.”

State v. Card.

Indictment, alleging that the defendant, at Dover, on the 22d of September, 1856, “ feloniously, unlawfully and willfully did set fire to, burn and consume a certain barn,” not being a dwelling-house, &e., contrary to the form of the statute. The indictment did not allege that the act was done maliciously.

The defendant moved to quash the indictment because the act was not alleged to have been committed <c willfully and maliciously,” in the terms of the statute.

Doe, for Clarissa Gove.

“ Willfully and maliciously” being of the description of the offence, the indictment is bad, unless the terms used are equivalent to those of the statute. “ Feloniously” is a general, technical term,.essential to all indictments for felony. Its place cannot be supplied by any other word, and there is no authority that it can supply the place of any other. The offence charged is not a felony at common law. “ Feloniously,” therefore, is repugnant, and vitiates the whole indictment, unless it is rejected as surplusage, and if rejected it cannot supply another defect. The indictment cannot be saved once by rejecting it as in itself improper, and again by retaining it as a substitute for something omitted. Com. v. Squire, 1 Met. 258; Wharton Cr. L. 148.

“ Unlawfully” does not include “ willfully.” Rex. v. Davis, 1 Leach C. C. 556, cited in Wharton Cr. L. 136, and Train and Heard Prec. 29.

Neither “ unlawfully” nor “ feloniously” convey any idea of willfulness or malice. Felony means forfeiture. 4 Bl. Com. 95. Larceny and other felonies are selfish and not malicious crimes. If “ feloniously” or “ unlawfully” include maliciously in burning, why do they not include “ traitorously” in treason, “ malice aforethought” in murder, “ burglariously” in burglary, “ falsely” or “ corruptly” in perjury, the intent to defraud in forgery, and vi et armis in all offences amounting to actual disturbance of the peace ?

The definition of arson at common law is “ the willful and malicious burning of the house of another,” and in an indictment for that offence, “ willfully” (or “ voluntarily”) and “ maliciously,” are necessary, as well as “ feloniously.” Wharton Cr. L. *513537; Train and Heard Prec. 29; 1 Hawk P. C., ch. 39, sec. 5; 1 Gabbett Cr. L. 78; 1 Hale P. C. 567; 2 East P. C. 1033; and so is every published form. Wharton Prec. 183; Waterman’s Archbold 485, 45; Bell’s Justice 341, (Ed. 1856;) Davis’ Justice 304.

If “ maliciously” is indispensable at common law, it certainly must be so under the statute, for the statute carefully repeats the common law definition. Though a statute relating to burning had not the words “ willfully and maliciously,” yet they were considered necessary in an indictment, for malice is of the essence of the offence. 2 East P. C. 1021,1033. “ Feloniously” can not be substituted for “ unlawfully,” when the latter is used in the statute. Authorities cited in Train and Heard Prec. 29.

Wheeler, for Card.

Hamlin, Solicitor, for the State.

In the English practice indictments are required to follow the language of the statutes with a considerable degree of strictness, the reason given being that it is in favorem vitce. No such reason exists here for very nice distinctions respecting indictments for arson.

Under our law, technical objections should not be so much favored in criminal prosecutions as under the much more severe statutes of England in former times. McKinney v. People, 2 Gilman 540.

In an indictment for a statute offence it is sufficient if the offence is substantially set forth, though not in the exact words of the statute. U. S. v. Bachelder, 2 Gallis. 15, (cited U. S. Dig., vol. 2, p. 528, no. 253.)

A variance between the language of the statute creating the offence, and the indictment, will not vitiate the indictment if the words used in the indictment are equivalent to those of the statute. State v. Hickman, 3 Halst. 299; see, also, Rex v. Fuller, B. & P. 180; 5 U. S. Dig., p. 148, no. 85; do. for 1849, p. 276, no. 16.

“ Feloniously ” — “ malignantly” — Worcester’s Dictionary; “felonious” — “malicious” — Webster’s Dictionary. Can an act be felonious, that is, malignant, and not be willful also ?

In general, an indictment need not adopt the very words of the statute; the same substance to a reasonable intendment, is sufficient. State v. Little, 1 Vt., cited 2 U. S. Dig., p. 528, no. 256.

The statute on which an indictment was framed enacts that every person who shall maliciously or mischievously destroy or injure, or cause to be destroyed or injured, any property of another, &c. The indictment charged that the defendant did unlawfully destroy a certain mare, &c. Held, that the indictment was sufficient. State v. Slocum, 8 Blackf. 315, cited U. S. Dig. for 1848, p. 261, no. 41.

There would seem to be no room for doubt, that “feloniously” is equivalent to, or rather, of more extensive signification, than “ maliciously,” and includes it; consequently the indictment is sufficient under the statute.

But if rejected as insufficient under the statute, it is good at common law.

The words, “ contra formam statuti,” may be rejected as surplusage. State v. Buckman, 8 N. H. 203.

Arson at the common law extended to the burning not only of dwelling-houses, but of all out-houses, parcel thereof, such as barns, stables, &c., though not contiguous thereto. 1 Hale 567.

The common law accounted it felony to burn a single barn in the field, if filled with hay or corn, though not parcel of the dwelling-house. 4 Black. Com. 221. See, also, statute of 9 Geo. I., chap. 22, which is supposed to be a part of the laws adopted prior to and at the time of the formation of our Constitution.