State v. Raiford , 7 Port. 101 ( 1838 )

ORMOND, J,

— There is no doubt that there is more propriety in writing the year or the day of the month, whenever it is necessary to state either, in the caption or the body of the indictment, than to insert the Arabic characters now in use; as writing is less liable to alteration, and more certain. But the contrary practice has prevailed so long, that it would be unwise now to disturb it. The ancient rule, doubtless, liad its origin in those days, when all plea lings were required to be in 1.. tin, — as we learn from 3 Bacon, 573, that Roman numerals will .answer. At all events, it would savor of unnecessary refinement, to sustain such an objection now.

But for the first'objection taken to the indictment., it should have been quashed. The language of the statute is, “Any person who shall presume to keep a tippling house, or sell rum, brandy, whiskey, taffia, or other spirituous liquors, &c. shall be liable,” &c. The indictment, in this case, charges the defendant with retailing spirituous liquors without a license.

This charge is deficient, in not defining the offence with that precision which the humane policy of our law requires. It is a well established principle of criminal pleading, that where a generic term is used in a statute creating an offence, in connection with words more precise and definite in their meaning, t-lie indictment must charge the offense in the particular words .used in the statute. This was decided by this court, in the case of the State vs. Plunkett. The words of the statute constituting the offence were, That if any person do fe-loniously steal any horse, mare or gelding, foal or filly, ass or mule, the person so offending, shall,” &c. The indictment charged the stealing of a horse: the proof was, it was a gelding, and on the principle above stated, the court determine the prosecution could not be maintained —See also Archbold’s Cr. Pl. 52, 3.

The judgment must be reversed, and the defendant held on his recognizance, to permit the solicitor for the State to prefer another indictment, if he thinks proper to do so.