Merwin v. The People.

with any degree of particularity or precision in this respect required at common lawas will be fully shown hereafter the sufficiency of this information must be tested by the rules applicable to an ind ctment for larceny at common law.

Among the objects to be accomplished by the mode of setting forth the criminal charge, with its essential and descriptive circnmstances, and especially the description of property stolen, he following have always been recognized as fundamental: First, to identify the particular transaction charged as criminal, so that the defendant shall not be liable to be put upon his trial for an offense different from that for which the grand jury have found the bill, or (when under our law the information is substituted) different from that to which the person verifying the information intended to swear; second, that the defendant's conviction or acquittal may inure to his subsequent protection, should he be again prosecuted for the same offense (and though the identity may be shown by evidence aliunde where it does not clearly appear from the record, yet it would be more difficult for the defendant to show such identity where no specific description is given in the indictment); third, to inform the defendant of the particular transaction constituting the offense for which he is to be tried, that he may be able to prepare for his defense; and fourth, to enable the court, looking at the record after the conviction, to decide whether the facts, as charged, are sufficient to support the conviction, to decide. whether the facts, as charged, are sufficient to support the conviction and warrant the judgment; and also, in some instances (as in larceny where the statute provides different degrees of punishment for larcenies above or below a certain amount or value, like our own) (Compiled Laws, 1857, § 5762), to guide the court in the infliction of the proper measure of punishment. See Starkie's Cr. Pl. (2d ed.) 68; 1 Bish. Cr. Pro., §§ 267, 268.

The ultimate design of all these objects is, fairness to the prisoner; and consequently any indictment which has failed to set forth the offense with such certainty as to accomplish any of these pur poses, as far as the nature and circumstances of the case would permit, has generally been held bad, upon general demurrer, or motion in arrest of judgment, or on writ of error. It is, however, true, that in some cases, and to some extent, the omission to state facts not essential constituents of the offense in the abstract, but which are required to be stated, if known, may be excused by an

Merwin v. The People.

allegation, on the face of the indictment, showing why they could not be stated. Thus, first, the grand jury may not have been able to ascertain the names of third persons whose names ought regularly to be stated; or, second, the means used to take life, in a case of murder; or, third, if in forgery, the forged instrument be lost, or in the hands of, or have been destroyed or concealed by, the defendant; in the first case, the names, in the second, the means used to produce death, and in the third, the exact words of the forged instrument, may be stated to be "to the jurors aforesaid unknown" (though in the case of the forged instrument, its loss or destruction, or its possession or concealment by the prisoner, must be stated, and its substance given). And upon the same principle, the omission of a specific statement of many other facts, not absolutely essential to the existence of the offense, may doubtless be excused in the same way. And that the particular description of the pieces of money stolen, or the amount of each kind, may be excused on the same ground, and in the same manner was expressly held in Commonwealth v. Sawtelle, 11 Cush. 142.

And this allegation, that the name or other particular fact is "unknown to the grand jury," is not merely formal; on the contrary, if it be shown that it was, in fact, known to them, then- the excuse failing-it has been repeatedly held that the indictment was bad, or that the defendant should be acquitted, or the judgment arrested or reversed. Rex v. Walker, 3 Camp. 264; 1 Chit. Cr. Law, 213; Rex v. Robinson, Holt's N. P. 595, 596; Blodget v. The State, 3 Ind. 403; and see Commonwealth v. Hill, 11 Cush. 137; Hays v. The State, 13 Mo. 246; Reed v. The State, 16 Ark. 499, and 1 Bish. Cr. Pro., §§ 300-302, where the cases are cited and the result given.

Now, within the rules of certainty required by the common law, for the purposes already explained, it has been long and well settled that merely charging the defendant with having stolen "the goods and chattels "of another, is not sufficient (2 E. P. C. 777, 778); and it seems to be equally well settled that an indictment for stealing money is not sufficient, if it state only the aggregate amount, without any specification of the number, kind or denomination of the pieces; but that the number of the pieces and their denomination, and whether of silver, gold or copper, should be stated, and regularly the value of each kind, if known. This will sufficiently appear by the cases cited by the counsel for plaintiff in error; and

Merwin v. The People.

see the authorities collected in 2 Arch. Cr. Pl. (by Waterman), 355, 21; 2 Bish. Cr. Pro., $ 663-668.

The present information fails utterly to comply with this rule, or to state any excuse for non-compliance. The charge is only of the stealing, etc., "of the personal property, goods and chattels of John C. Connell," * "one hundred and thirty-five

dollars."

*

*

It is easy to see that under this general charge, defendant might have been put upon his trial for a transaction wholly distinct from that intended to be sworn to by the person verifying the information. And unless we are to presume in advance that the defendant is guilty, and must, therefore, know the transaction intended to be proved against him (which would be reversing the legal presumption), what information does it give the defendant, of the nature of the evidence intended to be introduced? And what information for his future protection would the record of his acquittal or conviction afford him? It is true that when the particular pieces have been properly described, and their number given, the prosecution are not bound to prove the whole number of picces, or all the kinds mentioned; but no conviction can be had except upon those which are both properly described in the information or indictment, and proved on the trial; unless the omission of such description has been properly excused. But it is not even quite certain whether this information was intended to charge the larceny of money, or any thing circulating, or used as currency at all; or whether the intent was to charge the stealing of some other kind of personal property; or, if of money, or something circulating as such, whether it was in coin of any kind, or treasury notes, or perhaps bank bills. Money, it is true, if otherwise sufficiently described as such, may also be alleged to be the "goods and chattels " of the owner, though it is much more properly described as his "money." Reg. v. Radley, 1 Den. C. C. 450, 451; 2 Car. & K. 974; 3 Cox's C. C. 460. But, not being expressly described as "money," and there being nothing to show that money was intended, except the loose inference from the words, "one hundred and thirty-five dollars," in this dubious connection with "personal property, goods and chattels," it is not quite certain, from the face of the information, that the pleader did not intend to charge a larceny of the "goods and chattels" of the owner to the amount or value of one hundred and thirty-five dollars.

Merwin v. The People.

And the inference that this may have been actually the pleader's intention, finds some support from the fact that, if he had intended to charge the larceny of money, or any thing circulating as such, he would naturally have used that term, not only to bring the case cicarly within the section (§ 5762, Comp. L. of 1857), which, if it does not create the offense of larceny, establishes two kinds or degrees of it, differently punishable as it exceeds or falls short of $25 in value, and expressly enumerates money as distinct from other property, but also for the purpose of availing himself of the greater generality of description which might be allowed by section 6061 of the same statute. But, not having stated it to be "money," he has not brought the information within this provision.

But if the information intended to charge the larceny of money, does it mean so many single one dollar pieces, of gold or silver, and which of them? or so many United States treasury notes (which are made a legal tender), of one dollar each? or does it mean so many dollars in the aggregate, of either one kind, without reference to the number or value of the pieces? or so many dollars in the aggregate, though composed partly of one kind and partly of another, and without reference to the respective amounts, or number of pieces or notes, of either kind? These are questions which the information does not enable us to answer.

I have found no case, and no principle of common-law pleading, upon which such an indictment or information can be sustained without showing, upon the face of the instrument, some excuse for the want of greater particularity. By the well-settled principles of common-law pleading, the defendant was entitled, in fairness, to either a statement of the kind, denomination and number of the pieces, notes or bills claimed to have been stolen, or to an allegation of some excuse for the omission. If the prosecutor chose to present his information upon common-law principles of pleading, when he might have availed himself of a more loose or liberal rule established by statute, we must apply to the case the common-law rules; and by these rules this information is clearly bad.

The judgment must be reversed, and as no conviction can be had upon the information, the prisoner must be discharged. The other justices concurred.

CASES

IN THE

SUPREME COURT

OF

MISSISSIPPI

BANK OF LOUISIANA V. WILLIAMS, plaintiff in error.

(46 Miss. 618.)

Conflict of laws — contracts of married women ·

Lex loci contractus- Lex fori

A corporation of Louisiana, authorized by its charter to lend money to the 'agricultural interest, on notes and mortgages," and to make such contracts with married women, and to enforce the same against their property, brought an action on such a contract, made in that State, against a married woman in another State, where she lived, and by the laws of which she was not personally liable on her contracts. Held, that the action could not be maintained.

ACTION on a promissory note. The opinion states the case.

Wm. F. Mellen, for plaintiff in error.

W. T. Martin, for defendant in error.

SIMRALL, J. The bank of Louisiana, a corporation created by the State of Louisiana and domiciled there, sued David P. Williams and Elizabeth M., his wife, to recover the amount due on a promissory note, dated Concordia Parish, La., April 8, 1857, for $30,000,