State v. Vanderlip

The judgment of the court (Slidell, J, absent,) was pronounced by Kins, J. The defendant was prosecuted under the 10th section of the act of 1805, B. and C.’s Dig. p. 243, for the larceny of several bank notes, and other effects, alleged to belong to I. B. Kirkland. He was convicted and sentenced, and has appealed. It is urged that the information was defective, for the following reasons: 1. Because the name of the parly aggrieved is not sufficiently averred. 2. Because the value of each of the articles charged to have been stolen, is not alleged. 3. Because the description of the property stolen is defective. 4. That the notes stolen are alleged to be the 11 goods ana chattels” of I. B. Kirkland, whereas, it is contended, they should have been averred to be the “ property” of the person injured. [446] These objections to the information are, as was correctly said in argument, Purely technical, and depend entirely upon authority. I. As regards the first ground. The name of the injured party is averred in the information to be I. B. Kirkland. Upon the trial Kirkland appeared as a witness, and testified that his name was Isaac B. Kirkland; whereupon the counsel for the accused asked the judge to instruct the juiy that the prisoner was entitled to his discharge; which charge the judge refused to give. As regards the description to be given in the indictment of other persons than the defendant referred to in it, Hawkins says : “ It is certainly safest to describe them with convenient certainty, which will hardly be dispensed with except in special cases, and for special reasons. Yet when, in common presumption, it maybe very difficult, if not impossible, to know the names of the persons referred to in an indictment, it may be good without naming any of them!” After giving several exceptions to the rule requiring the name of the injured party to be averred, he concludes by saying: “ However, from the whole, thus much seems plainly to follow, that whenever the person injured is known to the jurors, his name ought to be put in the indictment.” Hawkins P. C., book 2, chap. 25, sec. 73. In the case of the King v. Sulks, an indictment for larceny, laying the goods stated to be the properly of Victory, Baroness Turkheim was sustained, although her true name was Selina Victoria. The court said it was not necessary that there should be an addition to the name of a prosecutor in an indictment; that all the law requires upon this subject is, certainty to a common intent; and that, as the prosecutrix had always acted in, and been known by the appellation of, Baroness of Turkheim, and could not possibly be mistaken for any other person, it must be taken to. be her name, and referred to the authority of Hawkins.” See the case in 2d Leach C. L. p. 1006. An indictment for the forgery of a draft addressed to Messrs. Drummond Co., by the name of Mr. Drummond, without stating the names of Drummond’s partners, was held, at a conference of all the judges, to be good. The judges said that they must understand the words “ Messrs. Drummond Company” as eveiy body else did, to mean the partners in the partnership in the banking house. One of the judges said, the only question was whether Drummond Co. were meant by the prisoner, which was established by the verdict. 2 East, P. C. 990. An indictment for an assault on John, parish priest of D, was held to be sufficiently certain. 2 Hawkins, P. C. chap. 25, sec. 74. In each of these cases, the party injured appears to have been known to the jurors, and in each the name is incorrectly stated. In the two first, the error consisted in omitting the Christian names; and in the third, in omitting the símame. In the present instance it appears that Kirkland was a merchant, residing in Memphis, in the State of Tennessee; that the package containing the notes, alleged to have been stolen, was taken while being transmitted to his correspondent in this city; and that it was marked I. B. Kirkland. It was shown on the trial that Isaac B. Kirkland was the owner of the notes and other effects contained in the package, and described in the indictment as being the property of I. B. Kirkland. It is not pretended that I. B. Kirkland and Isaac B. Kirkland are not one and the same person, and the owner of the effects stolen. That Kirkland was known by the name of I. B. Kirkland, is evident from the fact that he is so described in the information. But it is not shown that he was known to the attorney general, or in this city, by any other name than that of I. B. Kirkland, and being the resident of another State, we cannot presume that the attorney general knew him by any other name than that averred in the information. [447] It is only when the party injured cannot be described by name, that it becomes necessary to state that' he is a person unknown. But with the evidence before him that the aggrieved party was known by the name of I. B. Kirkland, the attorney general could not, with propriety or truth, have averred the property in the notes to be in a person unknown, On the contrary, the rules of criminal pleading absolutely required that, he should have averred it to be in a person whom the evidence in his possession described as I. B. Kirkland. We think that the circumstances of this case, tested by the strictest rules of criminal pleading, bring it within the exceptions to the general rule which require the name of the injured party to be accurately set forth, and authorize the averment as made in the information. See 1 Chitty, C. L. p. 212, et seq. II. The information alleges that several different notes were stolen, but avers the value of but two of them. The only authority to which we have been referred, in support of the proposition that sentence could not be passed on a general verdict upon an indictment of this kind, establishes, as we think, the reverse of the proposition. See 1 Mass. Rep. 245. If there had been several counts, instead of one, some of which averred a value to the articles stolen, and others which did not, it seems to be settled that, after a general verdict, judgment could have been given upon the good counts. When there is but one count, those parts of it which are defective, by reason of the failure to aver the value, may be rejected as surplusage, without affecting the validity of the instrument; and tire conviction as to the remainder will be good. III. The next objection is that, the description of the property stolen is defective. It is contended that the notes should have been described in the precise terms of the statute. The words of the act are: “ The robbery or larceny of bank notes, obligations” &c. “ shall be punished” &c. The averments in the information are: “one note of the Bank of Mobile,” “one note of the Bank of Alabama,” “of the goods and chattels.” Although, in general, it is necessaiy to use the precise technical expressions of the statute in describing the offence, a variance which does not alter the sense of a material part of the statute will not vitiate the indictment. The terms “ bank notes,” and “ notes of a bank,” are, in ordinary parlance, synonymous. Both are understood to mean the notes emitted as the circulation of the bank. In the 'case of the Comm. v. Richards, it was held that a deviation from the terms of the statute, similar to that which occurs in the information now under consideration, did not vitiate the indictment. Comm. v. Richards, 1 Mass. Rep. 338.. We think that case conclusive of the point presented. IV. The last objection urged we also think untenable. In the case of The People v. Holbrook, 13 Johnson’s Rep. 93, 94, anaverment of the property, in the terms used in the present information, was held good. The court said: “ It is sufficient to lay in an indictment that the notes or instruments mentioned in the statute are the goods and chattels of any person who is entitled to them; and that the word chattels denotes and signifies, when applied as in this case, property and ownership.” Judgment affirmed.