State v. Pritchett

In my opinion the results reached in the decision heretofore rendered should not be disturbed. As the former opinion is reported in 87 U. 104, 34 P.2d 704 and will be printed in the Utah Reports, it is not necessary to repeat what is there said. The view is expressed in the prevailing opinion that the allegation of the information, "that said defendant William A. Pritchett was not then and there, nor was any other person or corporation whatsoever entitled to said check or draft or the proceeds thereof or the said credit in payment of a just demand, or otherwise, or at all," may be regarded as surplusage. In support of such view the cases of Heeser v. Miller, 77 Cal. 192,19 P. 375, and Churchill et al. v. Lauer et al., 84 Cal. 233,24 P. 107, are cited. I am unable to see wherein the cited cases are in point. Both of the cases are civil, not criminal. One holds that there was no conflict in the allegations of the complaint; the other that the allegations of the complaint merely created an amibguity and, as such, must be attacked by special and not a general demurrer. The correct rule with respect to an indictment or information, such as the one here in question, is thus stated in 14 R.C.L. 191, § 37:

"Mere surplusage will not vitiate an indictment which contains sufficient matter to charge a crime. An unnecessary averment may be considered surplusage and rejected, as may a defective but immaterial averment, and a fact stated may be rejected as surplusage if it be merely in aggravation, so that it may be stricken out and yet leave the offense fully described. An indictment for a misdemeanor is good which alleges the facts which constitute the misdemeanor, notwithstanding it also alleges some but not all of the facts which would show that the criminal act was a felony, and duplicity which amounts only to surplusage is not fatal. No part of an indictment can, however, be rejected as surplusage for the purpose of sustaining a conviction under it, which, if true, shows that no crime was committed. On the contrary, it must be accepted as an admission of record which the state cannot refute. And an allegation in an indictment descriptive of that which is essential to the charge therein made is a material allegation and cannot be rejected as surplusage. So where a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description, not being surplusage, must be proved."

The same rule is thus expressed in 1 Wharton's Crim. Proc. (10th Ed.) 349, § 305:

"When one material averment in an indictment is contradictory to another the whole is bad; but repugnancy in an immaterial part of the indictment does not render it bad, such as an impossible date in an immaterial part of the indictment, which may be corrected at any time when the date does not enter into the essence of the offense charged, or it may be rejected as surplusage. Thus, to adopt one of the old illustrations, if an indictment charge the defendant with having forged a certain writing, whereby one person was bound to another, the whole will be vicious, for it is impossible that any one can be bound by a forgery.

"A relative pronoun, also referring with equal uncertainty to two antecedents will make the proceedings bad in arrest of judgment. But, as is elsewhere seen, every fact or circumstance laid in an indictment, which is not a necessary ingredient in the offense, may be rejected as surplusage."

Other authorities and cases sustaining the rule announced in the texts above quoted will be found cited in footnotes. The basis for the rule as to contradictory pleadings is analogous to the rule applicable to contradictory testimony of a witness. In the case of a witness, the weight of his testimony is determined by the weakest part thereof, and likewise the sufficiency of a pleading is tested by the weakest and not the strongest allegation therein. As stated in State v. Flint, 62 Mo. 393, quoting Chitty's Criminal Law, p. 231,

"It is essential that the charge should not be repugnant or inconsistent with itself, for the law will not admit of absurdity and contradiction in legal proceedings."

The rule is so well and uniformly established that further citation of authority is not necessary.

It will probably not be contended that the ownership of a credit which the accused is alleged to have misapplied is immaterial. The very essence of the charge attempted to be stated is that such credit belonged to some one other than the accused. The allegation that the "said defendant William A. Pritchett was not then and there, nor was any other person or corporation whatsoever, entitled to said check or draft, or the proceeds thereof, or the said credit, in payment of a just demand or otherwise, or at all," may not be said to create a mere ambiguity. It is a positive and direct averment that no one was entitled to the check or draft or the proceeds thereof or to the credit which forms the subject-matter of this controversy. It will be observed that the pleader emphasized the all-inclusiveness of the absence of all right to the check, etc., by alleging that not only was the defendant without such right, but also that any other person or corporation whatsoever was without such right. The use of the word "other" in the sentence in question clearly means any person or corporation whatsoever remaining from the defendant mentioned at the beginning of the sentence. To say, as is said in the prevailing opinion, that the allegation under review obviously means that no person or corporation other than the Utah Poultry Producers Co-operative Association is entitled to the check or draft or the credit or the proceeds thereof, is to give an entirely different meaning to such allegation than that expressed by the language used. To construe such allegation so as to exclude the Utah Poultry Producers Co-operative Association from "any other person or corporation whatsoever" is to construe the language used in a way which I perceive is contrary to the clear meaning of the language used.

Thus, in my opinion, the allegation under review may not be regarded as surplusage without offending against the rule heretofore stated with respect to repugnacy, and the allegation in question is not susceptible of the construction given it in the prevailing opinion.

The other ground upon which, in the former opinion, it was held that the information is fatally defective was that the information "fails to sufficiently describe the instrument which it is claimed the accused used and passed." At the oral argument it was urged that the check or draft referred to in the information had been destroyed, probably by the accused. Such argument cannot properly be given any weight in passing upon the sufficiency of the information. It must be tested by the allegations contained therein and not by the evidence which may be given in support thereof, much less by the statement of counsel in argument as to what are the facts, where, as here, we have before us only the judgment roll.

A pleader may be relieved from setting forth the language of a written instrument relied upon for conviction of a crime, such as forgery, or from a particular description of a written instrument used in the commission of a crime where such instrument is lost or destroyed or in the possession of the accused. However, to so relieve the pleader the facts relied upon must be alleged in the information. In the absence of an allegation to the contrary, the courts will assume that the pleader is in possession of all the facts relied upon for a conviction. We have a statute which provides that:

"When an instrument which is the subject of an information or indictment for forgery has been destroyed or withheld by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the information or indictment and established on the trial, the misdescription of the instrument is immaterial." R.S. Utah 1933, 105-21-20.

Such, in effect, is the law independent of statutes with respect to the crime of forgery and other similar crimes. By both our Constitution and statutory law an accused is entitled to know the nature and cause of the accusation against him before he is required to go to trial. Our statute requires that an information must contain "a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended." It must "be direct and certain as to * * * the offense charged; and, the particular circumstances of the offense, when they are necessary to constitute a complete offense." R.S. Utah 1933, 105-21-3, and 105-21-5.

In this case it will be observed that the crime of misapplying the credit of a corporation by an officer or agent thereof may be accomplished by numerous acts. The information here charges that the defendant misapplied the sum of $1,642.36,

"lawful money of the United States of America, by then and there using and passing a certain bank check or draft for said sum of $1,642.36 drawn on and against the aforesaid credit, whereby said defendant William A. Pritchett received and misapplied said credit in the sum of $1,642.36, in that he then and there deposited said check or draft for said sum to his own account and credit in the Continental National Bank of Salt Lake City, Utah."

It is urged on behalf of the state:

"That the accused was not charged nor did the information intend to charge him with unlawfully using and passing a bank check or draft. He was specifically charged with unlawfully applying credits of a corporation."

It will be observed that the specific acts which accused is charged with having committed are the using and passing of a bank check or draft. As I read the information the misapplication of the credit was the result of the using and passing of the bank check or draft. If the accused owned the check or draft or had the lawful right to use and pass the same, it is difficult to perceive from any facts alleged in the information wherein he was guilty of the crime of misapplying the credit. To charge one merely with the misapplication of a credit of a corporation is not "a statement of the acts constituting" the crime defined by the statute here in question. In determining whether or not a crime is charged in using and passing a check or draft, whereby the credit of a corporation was transferred to the credit of the accused, the maker and payee of the draft may be of controlling importance. Thus, if the corporation was the maker and accused the payee of the check or draft referred to in the information, then and in such case there are no other acts alleged which charged an offense. The allegation that the accused misapplied a credit of a corporation is not descriptive of any act, but may result from any one or more of the numerous acts mentioned in the statute under which this prosecution is had. If the state is in the possession of the check or draft which it claims the accused used in misapplying the credit of the Poultry Association, it should set out at least the maker and payee thereof. Such matters would seem to go to the very essence of the crime here attempted to be charged. On the other hand, if the check or draft is not available, such fact should be alleged.

If the information fails to state a public offense, the accused, as a matter of law, is prejudiced by the conviction. A conviction upon an information which fails to state a public offense may be attacked after verdict in arrest of judgment and upon an appeal to this court. R.S. Utah 1933, 105-24-11; State v. Steele, 67 Utah 1, 245 P. 332; State v. Lund, 75 Utah 559,286 P. 960; State v. Durfee, 77 Utah 1, 290 P. 962.

For the reasons stated, I dissent from the order affirming the judgment appealed from.