White v. State , 23 Wyo. 130 ( 1915 )

Scott, Justice.

The plaintiff in error, who was defendant below, was. charged, tried and found guilty of the crime of murder in the first degree and sentenced to suffer the extreme penalty of the law, and from the conviction and judgment he brings error.

1. The charging part of the information and verification thereto are as follows:

“Comes now William O. Wilson, County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that O. W. White, late of the county aforesaid, on or about the 12th day of August, A. D. 19013, in the County of Natrona, in the State of Wyoming, did then and there unlawfully, wilfully and feloniously and purposely and with premeditated malice, kill and murder one, Anderson Coffee, the said Anderson Coffee, being then and there a human being, contrary to the form of the statute in such .case made and provided, and against the peace and dignity of the State of Wyoming. William O. Wilson,

“County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming.

“State of Wyoming, ) Natrona County, iss'

“I, William O. Wilson, County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming, do solemnly swear that I have read the above and foregoing information by me subscribed, and I .know .the contents thereof, and that the facts therein stated are true, so help me God. William O. Wilson.

“Sworn to before me and subscribed in my presence, this 20th day of September, A. D. 1913, and I so hereby certify. Fred E. Place,

“Clerk of Court.”

It is contended that the information is fatally defective in that the time of the commission of the alleged offense is-stated at a date subsequent to filing the information or at a future date, to-wit, “on August 12, 19013.”’ Such a date was an impossible date and under the common law an indictment so worded could not be the basis of a legal trial and conviction. In the case here there was no motion to quash, nor was a demurrer interposed to the information, nor was there any motion to arrest presented to the trial court. The question of the sufficiency of the information is presented here for the first time. It must be conceded under Section 6165, Comp. Stat. 1910, that if an impossible date as stated in the information was an imperfect statement, or if it may be regarded as surplusage, or if it did not tend to prejudice the substantial rights of the defendant on the merits, then we would not be justified in reversing the judgment on that ground. Among other things that section provides: “No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected * * * for omitting to state the time at which the’ offense was committed in any case where the time is not of the essence of the offense; nor for stating the time imperfectly * * * ; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant; nor for any surplusage or repugnant allegation when there is sufficient alleged to indicate the crime or person charged.” Time is not of the essence of the crime here charged nor does the statute of limitations apply to a prosecution for homicide, and we are of the opinion that the information complied with all of these provisions if the allegation of the impossible date may be treated as surplusage, for if that allegation be eliminated the information must be held good under the above statutory rule of construction. Under that rule the presumption is, even though the date of the crime is not alleged, that the alleged crime was committed prior to the filing of the information and upon the trial the prosecution would ibe held to proof of its commission prior to the filing of the information, as was done in this case. In reading the information two things are apparent: First, that the date stated being a future and impossible date is a clerical error, as indicated upon a printed blank with the year 190 and the typewritten figures 13 added thereto; and, second, that if treated as surplusage there would remain, as provided by the statute, allegations sufficient to charge homicide. It may be conceded that the strict rule of construction obtained at common law and such rule obtains everywhere except when changed or modified by statute. Under that rule the information would be demurrable, but under like statutes as Section 6165, supra, which was enacted and intended to do away with the force of refined technicalities in criminal pleadings which are technical but not prejudicial to any substantial rights of the defendant, and some courts have treated the defect as one of form and not of substance. The error in the date of the commission of the homicide as recited in the information before us may, we think, with entire propriety be treated at least after verdict and judgment as cured by the verdict. (Connor v. State, 25 Ga. 515, 71 Am. Dec. 184.) The time of the commission of the homicide was proven without objection as “August 13, 1913,” which was a day prior to the filing of the information. The words “did then and there * * * purposely and with premeditated malice kill and murder” import a past transaction (Conrand v. State, 65 Ark. 559, 17 S. W. 628; Williams v. Com., 18 S. W. 1024; Com. v. Miller, 79 Ky. 451; Vowells v. Com. 84 Ky. 52; State v. Patterson, 116 Ind. 45, 10 N. E. 289, 18 N. E. 270) ; and in that respect are repugnant to the figures denoting the year in which the homicide was committed. It is said in Bishop Cr. Proc., Vol. 1, Sec. 478, that “Surplusage is any allegation without which the pleading would be adequate at law.” In State v. Murphy, 102 Mo. 680, 77 S. W. 157, the court say: “If after striking out portions of an indictment, sufficient remains to constitute a valid charge of the crime intended to be charged, such striking out is permissible and the indictment is good.” This is the uniform holding in that state and is supported by a long line of decisions. The general rule, irrespective of statute, is that surplusage does not vitiate an indictment and to aid the same it may be rejected. (State v. Judy, 60 Ind. 138.) In State v. Brooks, 85 Ia. 366, 52 N. W. 240, the defendant was convicted of embezzlement. After issue was joined and when the case was called for trial the State applied to the court for and over defendant’s objection and exception obtained permission to and did correct the indictment by changing the date of the alleged commission of the crime from “On or about the 15th day of November, 1890,” so as to read, “On or about the 15th day of November, 1888.” The first day as alleged placed the commission of the offense at a date subsequent to the finding-of the indictment and was therefore an impossible date. There was no re-arraignment and the trial proceeded. The defendant was found guilty and the case was appealed to the Supreme Court, which held that the indictment was not void and that the objection to its correction was technical and should be disregarded under a statute providing that that court should “examine the record, and without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment" on the record as the law demands.” (See State v. John, 124 Ia. 230, 100 N. W. 193; State v. Woodman, 3 Hawks (10 N. Car.) 384.) In Trout v. State, 107 Ind. 578, 8 N. E. 618, the defendant was convicted of an assault with intent to commit rape. The information charged that it was committed on October 21, 1886; the affidavit and information based thereon were filed on January 16, 1886; the affidavit correctly stated the date of the commission of the offense, to-wit: October 21, 1885. Trout appealed, claiming that the trial court erred in overruling his motion in arrest of the judgment upon certain grounds, among others “Because the facts stated in the information do not constitute a public offense under the laws of Indiana.” There was no motion to quash and the court upheld the information and say: “If the appellant had moved the trial court to quash the information in this case it would have been error, under our decisions, to have overruled such motion. (Dyer v. State, 85 Ind. 525; Murphy v. State, 106 Ind. 96.)”

In McKay v. State, 90 Neb. 63, 132 N. W. 740, 39 L. R. A. N. S. 714, Ann. Cas. 1913B, 1034, it was held that an information is fatally defective if it charges the commission of the offense as subsequent to the date upon which the information is filed. The case afterward came before the court on a motion for a rehearing (91 Neb. 281, 39 L. R. A. N. S. 714, Ann. Cas. 1913B, 1034, 135 N. W. 1024) and a majority of the court receded from its former holding that charging the commission of an offense at a time subsequent to filing the information - did not render the information void. This holding was in a case exactly like the one here, where the defendant had been convicted of murder in the first degree, although the judgment in the Nebraska case was reversed upon other grounds. In State v. Mulford, 12 Ohio Dec. (Nisi Prius) 724, 728, under a similar statute to ours, a motion to quash a count in an indictment on the ground that the count fixed the date of the offense as December 31, 1998, the court say: “That the offense could not have been committed on the date alleged is manifest; and it is equally manifest from the allegations of this count that the date is erroneously stated, for the 'offense 'is charged in the past* tense, and this sufficiently shows that the offense was committed in the past.”

It is not the policy of the lawmakers to permit courts to reverse a conviction for crime upon mere technicalities alone, but to limit them to reversals for errors which are prejudicial to some substantial right of the accused. In the case before us if the information be strictly construed its meaning is absurd, for it alleges the date of the commission of the crime not only as subsequent to the filing of the information, but not within the possible lifetime of the defendant or anyone now living. The allegation of a past transaction and one in the future, as already pointed out, are repugnant. No one reading the information could be misled as to the date. The construction contended for by defendant cannot be sustained, for a casual reading of the information itself would disclose that it was a clerical error. (State v. Crawford, 66 Ia. 222, 23 N. W. 684.) Indeed it was admitted upon the argument that the mistake in the date was neither discovered by the state nor defendant until after verdict and judgment. Under Section 6165, supra, the information, judgment or proceeding shall not be disturbed for failing to state the time, or stating it imperfectly where time is not of-the essence of the crime alleged. There is no uncertainty in the charge, and the erroneous date therein alleged could be stricken out without detriment to the information, for it would still charge the defendant with the crime of murder in the first degree, and presumably committed at a time prior to the filing of the information. In such a case it may, we think, be considered as surplusage and disregarded. (State v. Murphy, supra.) We are aware that the conclusion here reached is not in harmony with the views of some courts upon this question, but we are unable to see that the defendant was prejudiced in any of his substantial rights by the defective information and to hold otherwise would, in our judgment, have the_ effect of nullifying the plain provision of the statute.

2. It is contended that the judgment is contrary to law. The part to which this objection is made reads as follows: “And thereupon said defendant, O. W. White, was informed that on the 10th day of October, 1913, the jury duly empaneled and sworn to try the charge against him had returned into court its verdict finding him guilty -of the crime of murder in the first degree and thereupon he was inquired of if he had anything to say why the sentence of the court should not be pronounced against him accordingly, and no good cause being shown, the court did then and there pronounce the following sentence.” The objection here urged is that it is not recited in the judgment that the information and inquiry was given and made by the court. Section 6254, Comp. Stat. 1910, provides that before the sentence is pronounced on the conviction of a felony such information shall be given and the defendant asked by the court if he has anything to say why judgment should not be pronounced against him. There is a presumption that obtains in the regularity of the proceedings of a court of record. The statute makes it the duty of the court to give such information and make the inquiry. No one else is authorized to do so and when the judgment as here recites that such information was given and the inquiry made we think the presumption obtains in the absence of a showing to the contrary that the information was given and the inquiry made by the court. The judgment in effect recites that the answer, if any, to the inquiry was deemed insufficient by the court which proceeded to pronounce judgment. The defect in the recital was not fatal to the judgment.

3. It is contended that there was misconduct of the jury and also that the court erred in giving some of the instructions to the jury. The motion for a new trial is found among the original papers returned and filed in this court, but that does not constitute it a part of the record, because-it is not incorporated in a bill of exceptions. Notwithstanding the fact that the motion is not incorporated in the bill of exceptions, which, under the rules and a long line of decisions of this court, would preclude us from considering these questions, we have, in view of the importance of this case, examined into them and find no prejudicial error as to them nor in any other respect, even had they been properly preserved in the record for our consideration. The evidence supports the verdict and we are of the opinion that the judgment should be and the same is affirmed. And now this court appoints Friday, the 4th day of June, in the year of our Lord 1915, for the execution of the sentence pronounced by the court below. Affirmed.

Potter, C. J., and Beard, J., concur.