State v. Evans ( 1835 )

Chambers, Judge,

delivered the opinion of the court.

After a deliberate examination of the authorities to which we have been referred, and of the English precedents in many cases, where the punishments have been changed by statute, we are of opinion that the correct rule, and the one which must govern the case at bar, is, that where a statute creates an offence which did not exist at common law, or changes the nature, or degree of an offence existing at common law, there the indictment must conclude contra formam statuti.

But if a statute only direct a different mode of punishment for a common law offence, the indictment may conclude contra pacem.

It is the right of every man, secured by a provision in our fundamental law, (Bill of Rights, 19th section,) to be informed of a criminal accusation against him, and to have a copy of the indictment in due time to prepare for his defence.

From the earliest age of the law, it has been conceded, that an indictment concluding contra pacem, charges only a violation of the common law, and with such an indictment, the accused need only refer, when preparing for his defence, to the criminal code of the common law, to ascertain what are the ingredients constituting the offence charged, and what will vindicate or excuse him.

If the facts as charged in such indictment, do not constitute the offence by the rules of the common law, the party accused need do no more than to show, that those rules do not embrace the case made out in the indictment. To sustain a charge so made, by the aid of a statute which prohibits the act imputed as a crime, would be a surprise upon the accused, because the indictment gave him no notice that he was charged with a violation of a statute.

We have not been able to procure the Kentucky statute, on which the decision in Harden is made, and cannot therefore see, how far it affects the principles we have adopted. There is nothing in the case cited from 10 Pick. Rep. which conflicts with this doctrine. There the statute of 1814, as will be seen by referring to it, describes the offence, and defines particularly the particular facts which constitute it, and the court considered that statute as superseding the common law in relation to that offence.

In this case the rules of the common law alone, define the offence which is charged and described in this indictment, and no aid from a statute was required to ascertain what were its ingredients to effect the conviction; no surprise therefore, can be alleged, which lessened the means of the accused “ to prepare for his defence.”

The trial and conviction being had, the court will be directed by the act of of 1809, chapter 138, commonly called the penitentiary act, as to the particular sentence to be pronounced. We have no doubt, that the common law is repealed, so far as it provided for the punishment of this offence; but we think that the offence may be punished according to the terms of the act of 1809, although not charged to be contra formam statuti, and therefore that the court below, committed error in not proceeding to pass sentence.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.