Kearney v. State , 1877 Md. LEXIS 114 ( 1877 )

Miller, J.,

delivered the opinion of the Court.

This case is now rightly brought before us by proceedings in the nature of a writ of error after final judgment, and properly presents the question of the validity of the indictment raised by demurrer in the Criminal Court.

The indictment is very brief, and charges that the plaintiff in error, on the 8th of April, 1876, “with force and arms, at the City of Baltimore aforesaid, four pieces of printed paper commonly called 1 United States five-twenty bonds ’ of the issue of the year eighteen hundred and sixty-five, each of the value of one thousand dollars, current money, of the bonds, goods and chattels of one Ernest Newrath, then lately before, feloniously stolen, taken and carried away, unlawfully did then and there have and receive, he the said Edward Kearney, then and there well knowing the said bonds, goods and chattels to have been feloniously stolen, taken and carried 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.”

It is clear beyond question that this indictment was drawn to charge an offence under that part of sec. 163, Art. 30, of the Code, which defines and punishes “the crime of receiving any bond, bill obligatory or bill of exchange, promissory note for the the payment of money, bank-note, paper bill of credit, certificate granted by or under the authority of this State or of the United States, or any of them, knowing the same to be stolen.” This and the preceding section 101, of the same Article, relating to the robbery or larceny of these and other written instruments, created new offences unknown to the common law. 2 East’s P. C., 597. Now the defect which we consider fatal in this indictment, is that it does not charge in distinct and positive terms that the “four pieces of printed paper ” were bonds or certificates of indebtedness issued or “ granted by or under the authority of the United States.” That they were so issued can only be made out by inference from the terms “ commonly called United States five-twenty bonds of the issue of the year eighteen hundred and sixty-five,” but that is not sufficient. The want of a direct allegation of any thing material in the description of the substance, nature, or manner of the crime, cannot be supplied by intendment, and hence 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. 2 Hawk. P. C., ch. 25, sec. 60 ; Deckard vs. The State, 38 Md., 201. It is also a well settled rule of criminal pleading that in an indictment for an offence created by statute, it is sufficient to describe the offence in the words of the statute, and where the words of the statute are descriptive of the offence, the indictment should follow (in substance at least,) the language of the statute, and expressly charge the described offence on the defendant, or it will he defective; it is necessary that the defendant should he brought within all the material words of the statute and nothing can he taken by intendment. 1 Whart. Amer. Cr. Law, sec. 364; 1 Bishop’s Cr. Procedure, sec. 360; State vs. Elborn., 27 Md., 488. Authorities in support of these propositions are too numerous to he cited. We content ourselves with a reference simply to the case of Rex vs. Craven, cited in 2 East’s P. C., 601, and reported in 1 Russ. and Ryan, 14. That case was relied on in State vs. Price, 12 G. & J., 264, to support the objection to the indictment there taken. The objection was not sustained, hut in overruling it the Court said, that in Rex vs. Craven “the felony created by the statute, was the stealing of a bank-note, or promissory note for the payment of money. The charge in the indictment was the stealing of ‘a certain note commonly called a bank-note.’ And the Court say ‘that in the first special description of the property stolen, it being stated only to he a note, was not sufficient, the words of the Act being bank-note or promissory note for the payment of money. And that the addition ‘ commonly called a bank-note,’ ‘ did not aid such original wrong description.’ In the case at bar there was no original wrong description which required aid from the words that were added. On the contrary the indictment described with technical accuracy in the very language of the Act of Assembly, the offence committed, and such description was neither aided nor impaired by,the additional words unnecessarily used.” But what was thus said in Craven’s Case is exactly applicable to the indictment now before us. The special description of the things received is, “four pieces of printed paper.” This does not conform to any thing contained in that portion of the statute we have quoted. It is altogether defective in this respect, and is not aided by the addition, “ commonly called United States five-twenty .bonds.” In short the statute creates and punishes with great severity the receiving, knowing them to be stolen, certain instruments importing on tbeir face obligations or promises for the payment of money, and among them it specifies and describes such obligations or certificates “ granted by or under the authority of the United States.” When the purpose is to charge a party with the offence of thus receiving such instruments, the indictment must charge directly and positively, and not by implication or intendment, that they were so granted or issued. That is not done in the present indictment and it is therefore substantially defective.

. This defect being in matter of substance and not of form, and the objection being raised by demurrer, it is plain the case is not affected by any thing contained in section 82 of the same Article of the Code. Nor is it cured by the Act of 1862, ch. 80. That statute dispenses with the necessity of setting out a copy or fac simile of the whole or any part of any printed or written instrument which it becomes necessary to make an averment respecting in an indictment, and allows it to be described by any name or designation by which it may be usually known, pr by its purport. But we are of opinion it was not the design and purpose of this Act to abrogate the well settled rule of pleading in criminal cases which we have already stated.

But it has been argued that the words “commonly called United States five-twenty bonds of the issue of the year eighteen hundred and sixty-five,” maybe rejected as surplusage, so as to make the indictment charge simply the receiving of “four pieces of printed paper, each of the value of one thousand dollars current money,” and that this would he good as an indictment for receiving stolen goods and chattels under the first part of the section referred to, which prohibits and punishes “ the crime of receiving any stolen money, goods or chattels knowing the same to he stolen.” If this could be done, it is clear it would make the indictment a totally different one from what the pleader obviously intended when he framed it. It was said in support of this position, that the Court has no judicial knowledge that there is no “ piece of printed paper” of the value of one thousand dollars. This may he true, hut it would he a different and more difficult matter to say the Court has not judicial knowledge, that no piece of paper, as a chattel, and apart from what it becomes or is made to import by the printing upon it, is of that value. It has been sometimes the practice, under statutes similar to this section of our Code, to introduce into the indictments separate counts, charging the larceny or receiving of “ one piece of paper of the value of one penny,” and in several cases which have been cited by counsel for the State, such counts have been held sufficient to support a conviction. This practice vras adopted in order to obviate the difficulty in setting out doubtful instruments, or to meet a failure of proof as to instruments duly charged in other counts. If there had been such separate count in the present indictment, it might, under these authorities, have been sustained. But the question here is not whether such a count would have been good standing by itself, hut whether it is allowable for the Court so to deal with the only count in this indictment as to make it a valid charge for receiving “four pieces of paper,” knowing them to have been stolen. In our judgment this cannot be done, and we have not been referred to any authority nor have we found any that would justify it. In England the law seems to be settled that where dioses in action are valid, the “pieces of paper” on which they are written are absorbed in them, and the indictment must be exclusively for stealing the dioses in action, and they cannot be properly described in the indictment as goods and chattels. Regina vs Powell, 2 Denn. C. C., 403. Here, as we have said, the plain intent was to charge the plaintiff in error with receiving four existing and valid bonds or certificates of indebtedness granted by or under the authority of the United States, knowing them to have been stolen, and it must stand or fall as it is valid or defective for that purpose. We cannot under the license of striking out surplusage, make it an indictment for receiving stolen goods and chattels. Regina vs. Larkin, 26 Eng. Law & Eq. Rep., 572.

(Decided 20th December, 1877.)

The demurrer must therefore be sustained and the judgment reversed. But this reversal does not relieve the party from further liability. Not having been tried on a valid indictment, he has not been put in jeopardy, and may, on being discharged from his present imprisonment, be re-arrested, re-indicted and tried again. State vs. Sutton, 4 Gill, 494; State vs. Williams, 5 Md., 82 ; Hoffman vs. The State, 20 Md., 425.

Judgment reversed.