Territory v. Shipley , 4 Mont. 468 ( 1882 )

Galbraith, J.

The record in this case does not show that the defendant was arraigned and pleaded to the indictment.

This is assigned as one of the reasons for the reversal of the judgment. No objection appears to have been made upon this ground in the court below and the defendant was duly tried after demurrer.

We cannot reverse the judgment for .the reason alone that the record does not show an arraignment and plea by the defendant. Where the record does not, as in this case, disclose such arraignment and plea, unless there is something to show affirmatively that the defendant was not arraigned and did not plead, such arraignment and plea will be presumed.

But the defendant demurred to the indictment, alleging, among other reasons therefor, the following, viz.: “That there is no sufficient description of the property alleged to be stolen, to put the defendant on his defense.”

The description of the property alleged in the indictment to have been stolen was as follows: “ Sundry bank bills issued by the authority of the United States of America, usually known as greenbacks, amounting in all to the sum of $180, of the value of $180,” and “sundry bank bills issued by authority of the United States of America, usually known as greenbacks, amounting in the aggregate to $589, of the value of $589.”

This description fails to give the number and kind, or denomination, of the bank bills. It is this failure which it is claimed constitutes the insufficiency of the description of the property and renders the indictment, consequently, bad.

One of the principal objects to be accomplished by an ' accurate, precise and certain description of property alleged to be stolen, in an indictment for larceny, is that the jury may be able to decide whether the chattel proved to have been stolen is the very same as that described in the indictment. It should, therefore, be described with sufficient certainty to enable the jury to so determine. Viewed in the light of this rule, the description complained of does not accomplish this object. There is not such a certainty of description as that a jury could find, if the property should be proved as described, that it was the very same property alleged to have been stolen in the indictment. A general description of the property as “ sundry bank bills issued by authority of the United States of America, usually known as greenbacks, amounting in all to §180,” or “in the aggregate to $589,” is plainly not a description with sufficient precision and certainty as to be a compliance with the above rule.

The description in an indictment for larceny should also be such as that, if the defendant be tried, he may be enabled to plead his conviction or acquittal to a subsequent indictment relating to the same property. It is true that the identity of the property may be shown by other evidence, but a failure to properly describe the property will render the proof of such identity more difficult. So far as the defendant could rely upon the description of the property in this indictment against a subsequent accusation relating to the same property, it is obnoxious to the objection of insufficiency of the description thereof.

Again, another object of the description is to inform the defendant with sufficient certainty and precision of the particular transaction constituting the offense with which he is charged, so that he may be able to prepare his defense thereto. We cannot think that this object is attained when, as in this case, in which bank notes or currency are the alleged subjects of larceny, the description merely states the kind of money generally, and the aggregate amount thereof, without stating the number and kind, or denomination, of the notes. This kind of property is as susceptible of this kind of description as coin or money, and in such a case “the number of the pieces and their denomination, and whether of silver or gold or copper, should be stated, and regularly the value of each.” Merwin v. The People, 26 Mich. 298. The description of the property, therefore, does not comply with what are regarded as fundamental requirements in relation to describing the property alleged to be stolen, in indictments for larceny. These requirements have, as their ultimate object, fairness towards the defendant. Any description, therefore, which is not set forth with sufficient certainty to satisfy the above requirements, or assign a good and sufficient reason for the failure so to do, may be taken advantage of by demurrer. The facts that are thus required to be set out are not, indeed, essential constituents of the crime. They are not vital to the accusation, being merely matters of description. But where they are not set forth, the reason for non-compliance with these rules should be stated in the indictment. The allegation that such facts are “unknown to the grand jury,” where such is the case, would be an excuse for such non-compliance. This is not a mere formal allegation, for it has been often held that if it be shown that the particular fact .was known to the grand jury, the indictment would be bad, or that the judgment should be arrested or reversed, or the defendant acquitted. 1 Bishop, Cr. Prac. secs. 300, 302, and cases cited. The indictment under consideration does not comply with the above requirements in relation to precision and certainty of description, or assign any excuse therefor.

These requirements are, in our opinion, reasonable, and not only do not conflict, but are in harmony with our own legislative provisions in relation to indictments, as set forth in article 8 of the Criminal Practice Act.

Judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.