State v. Blaisdell , 49 N.H. 81 ( 1869 )

Sargent, J.

The exception taken to the ruling allowing the state’s counsel to challenge a juror without cause, must be overruled. The statute provides, Geni. Stats, eh. 233 sec. 9, that “ in the trial of all criminal cases by jury, the state in addition to challenges for cause shall be entitled to two peremptory challenges,” and in State v. Wilson, Rockingham county, June term, 1869, it was held that this provision of the statute was not objectionable as being unconstitutional.

It is unnecessary to cite authorities to the point, that this indictment would be bad at common law, and would have been so in tlf s state before our statute allowing amendments in matters of form, &c, 1 Chittys Crim. Law, 226, 2 Hawk. P. C. ch. 25, sec. 75, State v. Pratt, 14 N. H. 456, State v. Litch, 33 Vt. 67.

This last case was precisely like the present. The indictment was found June term, 1859, and charged the offence as committed the first day of November, 1859, while the evidence showed the offence to have been committed the first day of November, 1857, defendant was convicted and then a motion in arrest of judgment and the judgment was arrested accordingly. In the opinion by Poland, J. it is said that the books all agree that when the time alleged is an impossible time, as when a future day is stated it is equally as .objectionable, as if no time at all had been inserted, which at common law is held to vitiate the indictment, though when any past time is alleged, that is held sufficient, no matter when the proof shows the offence to have been in fact committed, except in cases where the time becomes material and is of the essence of the offence.

In State v. Lee Bore, 26, Vt., 765, it was decided that an indictment for bigamy was fatally defective, because the time of the first marriage was left blank. Subsequently the legislature provided that in that class of indictments it should not be necessary to set forth the time and place of the first marriage, but they did not alter the general rule in other cases, and it was held that such defects as this might be taken advantage of as well by motion in arrest, as by demurrer.

In civil suits all such defects are cured by verdict and upon demurrer or motion to quash amendments would be allowed. And in England, by the 14 & 15 vie. ch. 100, sec. 25, it is provided that all these mere formal technical objections shall be taken by demurrer or motion to quash and that the same shall be of no avail after verdict. It is also provided, that mere .formal errors and defects may be amended in criminal as well as civil proceedings.

Judge Poland in State v. Litch, supra in referring to this legislation iti England, expresses the hope that some similar legislation may soon be had there so that justice may not be cheated by such merely clerical mistakes, and the application of rules purely technical.

Now our legislature has undertaken to follow this legislation in England and has provided in Geni. Sts. ch. 242. sec. 13, that “no indictment, complaint, return process, judgment or other proceeding in any criminal case in the courts or course of justice, shall be abated, quashed or reversed for any error or mistake where the person and case may be rightly understood by the court, or through any defect or want of form or addition, and courts and justices may, on motion, order amendments in any such case.”

This is placing criminal proceedings on the same basis as civil, so far as formal defects are concerned. They may be amended if objected to by respondent, or on motion of the officer for the state, and if not thus amended, then they are held to be cured by the verdict.

There would seem to be no doubt as to the result of this verdict, when we consider the broad and comprehensive terms of our statute. But we find some authorities directly bearing upon this subject.

In Kenney v. State, 5 R. Island, 385. It is held that “'when the time where the offence was committed is not a constituent of the of-fence, the omission to state it in a criminal complaint is a defect of form merely.”

In delivering the opinion in that case Ames, C. J. says, “ another objection to these convictions, that no time is laid in the complaints at which the offences were committed, is not supported by the copies exhibited to us, and if it were, would not avail the applicant considering the provision of ch. 222, sec. 4 of the Revised Statutes. Time is not material to such charges as these, other than as giving legal certainty to them, and without it, the charges are defective rather in the mannerl of stating them, that is in 'the form, than in any substantial constituent of the offence, that is in substance. The statute provision just referred to, that “ no indictment or other criminal process shall be abated or quashed for any want of form,” seems to us applicable to such a defect, since we cannot see how the prisoner was prejudiced by it in his pleas or defences, or can be if arraigned a second time for the same offence.”

Substantially the same doctrine is held in State v. Freemen, 8 Clark (Iowa) 428.

The time was not in this case of this substance of the offence, ’ the statement of the time therefore Avas a matter of form and not of substance. If the respondent had demurred or moved to quash the indictment for that cause it might have been amended in that particular, or it might have been so amended on motion of state’s counsel, but not having been amended it must be held under our statute to be cured by the verdict, and the motion in arrest must be denied. State v. Goodrich, 46 N. H. 186; State v. Lyon, 47 N. H. 416.