State v. King , 95 Md. 125 ( 1902 )

The appellee in this appeal was indicted in the Circuit Court for Frederick County for larceny. The indictment is as follows:

"State of Maryland, Frederick County, Sct:"

"The Grand Jurors of the State of Maryland, for the body of Frederick County, upon their oath do present that James King, late of said county on the thirteenth day of July, in the year of our Lord, one thousand, nine hundred and one, with force and arms, at the county aforesaid, twenty-six dollars and fifty cents, current money, of the value of twenty-six of dollars and fifty cents, altogether being the value of twenty-six dollars and fifty cents of the goods and chattels of one John Lipscomb, then and there being found then and there feloniously did steal, take and carry away, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State."

To this indictment the appellee demurred. The demurrer was sustained by the Court and judgment was entered for the appellee on the demurrer. From this judgment the State has appealed. The ground of the demurrer was that the indictment does not make a sufficient allegation of ownership of the subject of the larceny; because it appears that the subject of the larceny charged was money and in the clause alleging ownership it is improperly described as "goods and chattels" which terms do not include or describe money.

In the case of Kearney v. State, 48 Md. 16, it was said by this Court: "It has always been held that it is an essential requisite in every indictment that it should allege all matters material to constitute the particular crime charged with such positiveness and directness as not to need the aid of intendment or implication." We may supplement this here by saying it is also held by all the authorities that among the "essential requisites" of an indictment for larceny is a sufficient allegation of ownership. 1 Whar. Crim. Law, sec. 979; State v. Blizzard,70 Md. 385; State v. Tracey, 73 Md. 447. The reason of the rule requiring the allegation of ownership in indictments for this crime is that the Court must be able to determine judicially that the property alleged to have been stolen was the property of another and not the property of the accused, and it is therefore essentially descriptive of the crime charged. A further reason is that the accused is entitled to be informed of the exact accusation against him. Now does the indictment in the case at bar so contravene the rules of pleading just adverted to as to make it fatally defective? It is now provided by statute, Act of 1898, ch. 120, Sup. Code, Art. 27, § 291A, that "in every indictment for robbery, larceny or embezzlement of any kind when the offense shall relate to money * * * * * and in every other indictment, whenever it shall become necessary to make any averment as to money, it shall be sufficient to describe said money as so much current money, or so many dollars, or dollars and cents, current money without specifying any particular coins, or notes, or certificates circulating as money, or other species of money," etc.

In the case at bar the subject of the larceny alleged is money and the description given in the indictment of this subject seems to be all that the statute requires. There is no uncertainty therefore or want of definiteness, legally speaking, in this part of the indictment. In respect to the allegation of ownership it would seem to be impossible to read the indictment without perceiving that the pleader meant that the money alleged to have been stolen was the money of John Lipscomb and this without supplying anything by intendment or at least without supplying anything more by intendment than if money was embraced within the terms "goods and chattels," or than if money had been again used, in making the allegation, in conjunction with "goods and chattels." The "goods and chattels" of John Lipscomb signifies goods and chattels belonging to or owned by John Lipscomb, which signification is given by the preposition "of" used before the name John Lipscomb. Among the definitions of this preposition as given by Webster's International Dictionary is "belonging to;" and another is "denoting possession or ownership." Then if we disregard the words "goods and chattels" as being an erroneous description of the subject of the larceny alleged, inserted after the subject had been properly described in the former part of the indictment, the reading of the clause in question would then be "twenty-six dollars and fifty cents current money * * * of one John Lipscomb." This would not change the signification of the preposition "of" as used before the name John Lipscomb and the meaning of the allegation in question so read would be that the money alleged to have been stolen was owned by or belonged to John Lipscomb at the time of the theft. The word "current" as employed in the indictment can have no such effect upon the signification which would thus be given to the clause in question in the indictment by omitting the expression "of the goods and chattels" occuring therein as suggested in appellee's brief, it may have, because that word is merely descriptive of the money — the subject of the larceny alleged. It has no relation whatever to that part of the indictment meant to aver ownership. It is descriptive of the money in the same sense as if the money had been alleged as silver money or as paper money "of John Lipscomb." It follows from the foregoing considerations that the unmistakable meaning of the indictment in the case at bar, as it relates to the ownership of the subject of the larceny charged therein, is that, at the time the alleged larceny was committed, the money described as the subject thereof belonged to or was owned by John Lipscomb, and that all implication that it might have belonged to or have been owned by the accused or by any other person than John Lipscomb is necessarily excluded. This being so the indictment gratifies fully the reasons for the rules of pleading which have been invoked in support of the demurrer, and to rule it fatally defective because it was not framed with strictly technical and formal accuracy would, to quote the language of JUDGE STORY in the case of United States v.Moulton, 5 Mason, 545, savor "of unseemly nicety if not of extravagant refinement."

This view seems to be supported by authorities very much in point. In the case of Regina v. John Radley, 2 Car Kirwan, 974, the indictment alleged that "John Radley * *

* * * two pieces of the current coin of this realm, called shillings of the value of two shillings, of the goods and chattels of Samuel Fitch, then and there being found, feloniously did steal, take, and carry away," etc. It was alleged against this indictment that it was defective in not stating to whom the shillings alleged to have been stolen belonged — the words "of the goods and chattels of Samuel Fitch" being insensible as applied to money. The case was heard on appeal by five Judges when the Court said "It is true money does not fall within the technical definition ``of goods and chattels.' But this indictment charges the prisoner with having stolen the current silver coin of the realm, which is an accurate description of the property stolen. We think that in reading the indictment the words ``of the goods aud chattels' ought to be rejected as surplusage * * * *; and that the charge in the indictment as before stated is that the prisoner stole two pieces of current silver coin of the realm of the value of two shillings of Samuel Fitch, which is a sufficient allegation that the coin stolen was the property of Samuel Fitch; and we think it is immaterial that the current coin of the realm is afterwards inaccurately described as ``goods and chattels,'" c.; and the conviction of the accused party on the indictment was held to be proper. In the case of Com. v. Moseley, 2 Va. cases, 154, the indictment read "William Moseley, c., * * two certain bank notes, to wit: of and for the sum of ten dollars, also one of and for the sum of five dollars which notes were current in the United States of the value of fifteen dollars of the money, goods and chattels of one George Fuller and from the said George Fuller, c. * * * * did feloniously steal, take and carry away,"c. The accused was convicted and upon the question reserved as to the sufficiency of the averment of ownership the Court said the words "of the money, goods and chattels" may be rejected as mere surplusage and then the indictment will contain a sufficient averment of property in the said notes in George Fuller the person from whom they were stolen."

In the case of Eastman v. Com., 4 Gray, 416-418, the language of the indictment was "one bank bill of the denomination of one hundred dollars of the value of one hundred dollars, one gold eagle of the value of five dollars, and one wallet of the value of fifty cents of the goods and chattels of Daniel Carter did steal," c. Upon this indictment the prisoner was convicted and sentenced to imprisonment for three years. A writ of error was sued out, based upon the alleged defect in the indictment in describing the bank bill as "goods and chattels." The prejudice complained of was that by treating the indictment as sufficient in its description of the bank bill as "goods and chattels," in the clause alleging ownership the value of the stolen articles was increased so as to make the punishment greater — imprisonment for not over one year being the punishment provided for theft where the value of the thing stolen did not exceed one hundred dollars which was above the value of the articles that were properly described in the indictment. In disposing of the contention as to the sufficiency of the indictment as respected the bank bill the Court said "the words ``goods and chattels' may be rejected as surplusage and the remaining words of the indictment will constitute a sufficient charge of larceny." This case was subsequently referred to with approval as to its ruling on this point in the case of Com. v. Bennett,118 Mass. 443 (p. 452). See also case of Com. v. Richards,1 Mass. 337, and authorities referred to in the cases herein cited. The reasoning in these cases upon the facts appearing in them is strongly applicable to the case at bar. As showing the disposition of the Courts in dealing with questions of this character to have respect to reason and substance rather than to mere technical nicety reference may also be aptly made to the cases of People v. Holbrook, 13 Johns (N.Y.) 90; People v.Kent, 1 Doug. (Mich.) 42, and Turner v. State, 1 Ohio St. Rep. 422.

The cases relied upon by the appellee in support of the demurrer are, none of them, in conflict with those which have been cited. The case of Regina v. Powell, 14 Eng. L. Eq. 575, was under an indictment for burglary for breaking and entering a house in the night time with intent to steal "the goods and chattels" therein. The jury found that the accused broke and entered the house with intent to steal mortgage deeds. It was held that the conviction of the prisoner was wrong — that mortgage deeds, the things stolen, were choses in action and were improperly described as "goods and chattels." The point of the case seems to have been that the charge was not proven as laid. The intent to steal was the essence of the crime charged and the intent to steal mortgage deeds was not an intent to steal goods and chattels. This would be so without respect to the sufficiency of the allegation of ownership either of the mortgage deeds or the goods and chattels. Other authorities relied upon by the appellee in support of the demurrer have relation to questions arising under statutes against receiving stolen goods which are generally held not to apply in money stolen. Considerations of the inconvenience to the public which might result from applying these statutes to the receiving of stolen money have influenced their construction; and it has been held that to apply them to stolen money is not within their reason or intent, 2 East P.C., 748. It will be unnecessary to go into an extended review or analysis of the cases referred to by the appellee in this connection. An examination of them shows that, as far as they can have any bearing at all here, they deal with the question of whether money is embraced within the terms "goods and chattels." With this question we have no necessary concern in this case since as we have seen the formula "of the goods and chattels" may be disregarded, or eliminated from the indictment which is under consideration here and there will still remain a sufficient description, and allegation of ownership, of the subject of the larceny charged. For the reasons stated we find error in the ruling of the Court below upon the demurrer and the judgment entered thereon will be reversed and new trial awarded.

Judgment reversed with costs and new trial awarded.

(Decided April 1st, 1902.)