State v. Hand, 6 Ark. 165 (1845)

Oct. 1845 · Arkansas Supreme Court

6 Ark. 165

State vs. Hand.

An inditetment ought to be certain to every intent, and Without any' intendment t'o’ the contrary.

The name of thte defendant should be repeated to'every distinct allegation, but it will1 suffice to mention it once,-as the nominative case ip one'eontinuing sentence.

Repugnancy in a material matter is fatal.

If the surname of the defendant be omitted'in- the presenting portion of the indict.ment, the defect is fatal, though the full name be mentioned in subsequent allegations, ih connection with relative words, referring to tlie name, as tlicir antecedent,as if .fully given in the presentation.

Writ of error to the circuit court of Pulaslci county.-

This-was an indictment against Hawkins Hand, for obtaining' money' by false and fraudulent pretences, determined in the circuit court of Pulaski county, at the May term, 1844, before the Horn J. J.- CiENEENiN,- one the circuit judges.

The indictment was, in substance, as follows:

“The Grand Jurors, &c., do present that Hawkins-late of &c., being an evil disposed person, and common cheat, and contriving and intending unlawfully, fraudulently and deceitfully to cheat and defraud one Thomas D. Merrick.of his money, for &cOn &c., at &c., did, with the intent to cheat and defraud the said Merrick, unlawfully, knowingly, designedly and falsely pretend to the said Merrick, that he, the said Hawkins Hand, had a large amount of money deposited in the hands of one Thomas S. Reynolds, by which said false pretences, said Hawkins Hand did, then and there, to wit, on &c., at &c., unlawfully, knowingly and designedly obtain from the said Merrick, a large amount of money, to wit, the sum of &c., with intent &c., whereas in truth and in fact he did not have any money whatever deposited with and in the hands of said Reynolds, &c.” — Concluding in the usual form.

The defendant pleaded, in abatement, that his name was not Hawkins, but Hawkins Hand. The Attorney General demurred to the plea; the court overruled the demurrer, and gave judgment for the defendant, the Attorney General electing to stand upon his demurrer.

The State brought the cáse to this“ court, by. writ of error, and assigns as error, the-judgment on the demurrer.

Watkins, Att’y Gen.

The plea traverses a fact not alleged in the indictment, and is consequently defective,

If the indictment would be good without the allegation of the fraudulent intention, the fact that the defendant’s name is incorrectly stated in that allegation, if altogether unnecessary, could not vitiate the remainder, but should be treated as surplusage.— Commonwealth vs. Cooley, 12 Pick. Rep. 37.

Where the act itself is unlawful an evil intent will be presumed, and if averred, is a mere formal allegation, which need not be proved by extrinsic evidence. 6 East. 474. Thus, in an indictment for seditious words, it need not be shown that they were uttered with an intent to alienate his majesty’s subjects, for it is manifest they have that tendency. 2 Ld. Raymond, 879. So, where a statement of the fact itself necessarily shows a knowledge of the illegality of the act, ho averment of the knowledge, or bad intent, is necessary.

E. H. English, contra.

An indictment ought to be certain to every intent, and without any intendment to the contrary. 1 Chit. Grim. Law, 172. This rule applies to the statement of the defendant’s name, as well as to the allegations, descriptive of the offence.

An omission of, or a mistake as to, the offender’s surname, is fatal. Ib. 201

The full name of the defendant should be stated in the presenting part of the indictment, and repeated to every distinct allegation. Ib. 203. •

In this indictment, the defendant is presented as Hawkins; his iaame¿ as set out in the plea, is Hawkins Hand, which the demurrer admits to be his proper name. There is, therefore, no person presented as the offender, and however certain the offence may be described, the indictment is defective.

, An indictment is fatally deficient, unless the .Grand Jurors present that some person, calling him by his proper name, has committed an offence, setting out, with certainty, the particular violation of law for which they present him. , .

Here the full name is only mentioned, rather by way of recital, in the portions of the indictment describing the offence, and though the “said Hawkins Hand” is referred to, the antecedent to which, the “said” refers, is in part wanting — and is not supplied by a reference to it, in connection with the full name.

Johnson, C. J.,

delivered the opinion of the court.

The only question presented for the consideration and adjudication of this court is, whether the circuit court erred in overruling the plaintiff’s demurrer to the defendant’s plea? It has been ruled that an indictment ought to be certain to every intent, and without any intendment to the contrary; and 'that it ought to have the same certainty as a declaration; for that all the rules that apply to civil pleadings are applicable to criminal accusations. Cro. Eliz., 490. Cro. Jac. 20, Comb. 460. 2, Str. 904. The name of the defendant committing the offence should be repeated to every dis.-tinct allegation, but it will suffice to mention it once, as the nominative case, in one continuing sentence. The plaintiff in error insists that -if the defendant’s full name had -appeared in the first part of the indictment, it would have been sufficient throughout the residue to have referred to it by the Christian name alone.. Whether this position be correct or not, we are not now called upon to decide. Whether the converse of the proposition is true or not, is the question raised by 4'he record, The word “said” was .obviously designed to refer to the last antecedent. Hawkins is the name previously given to the defendant, and that, -consequently, is the last antecedent. If all that portion of the indictment, which precedes the full name, can'be expunged and yet leave sufficient to constitute a good and valid -indictment against the defendant, then it is tha-t it ought to have been rejected as surplusage, and the demurrer sustained. The reference could neither add to nor diminish from the name referred to. It is a general rule that repugnancy in a material matter is fatal -to the indictment. But though the indictment must in all respects be certain, y.et the introduction of averments altogether superfluous and immaterial will seldom prejudice : For, if the indictment can be supported without the words •which are bad, they may, on arrest of judgment, be rejected as surplusage. There is a manifest and palpable repugnancy in the indictment in this -case, -and that too in a material and essential part. It stands precisely in the same attitude as if any other person, by another and different name, had been presented, and that afterwards the name of the present defendant had been inserted, with a reference to that name. In that case, -it certainly would not be contended that by connecting the two names together, by the word “said” or “aforesaid” they w-ould thereby become one and •the same. If the grand jury have presented any one by this indictment, it is Hawkins, and not Hawkins Hand. This being our view of the case, we are of opinion that the defendant’s plea is substantially good in point of law, and that therefore the court below did -fiot err in overruling the demurrer. Judgment affirmed.