“In the construction of the statutes, it is well settled that ordinary words, in the absence of other disclosed intention, will be given their usual meaning.”
How later courts described this case
- “In the construction of the statutes, it is well settled that ordinary words, in the absence of other disclosed intention, will be given their usual meaning.”
- “feloniously” means wrongfully and with the intent of committing a crime
Written by the judges who cited it.
The opinion
Moss, J.
I concur fully with the final conclusion of the court that the portion of chapter 1954 of public laws of 1932, sec. 3, clause 5, which is in question in this cause, is not unconstitutional; but I regret to say that I cannot agree with some of the reasoning and findings upon which that conclusion is based in the opinion of the court.
My associates find therein, in substance, that the form of indictment for conspiracy which the above mentioned section makes permissible, and which was in fact used in the indictment now before us in this cause,
viz.,
“A. B. and C. D. conspired together to steal the property of E. F. ” has the same meaning as if it read “ A. B. and C. D. conspired together to commit larceny of the property of E. F.” So far I agree fully with them; but then they say “that the statute itself impressed a technical meaning upon the words ‘to steal the property of another’ as the equivalent of ‘larceny’ as it is at least known at common law.” From this they conclude, if I follow their reasoning correctly, that the form of indictment, authorized and used, charges a conspiracy to do an unlawful act,
viz.,
to commit larceny of the property of E. F., and that therefore the nature and cause of the accusation are set forth with legal sufficiency.
To my mind the great objection to this is that by the words “larceny as it is at least known at common law” it is admitted that “larceny,” as the equivalent of the
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crime charged in the indictment as the object of the conspiracy, means or may mean something more than larceny at common law. Unless we know whether the crime so charged is merely common law larceny or may be something else, and if it may be something else, what that is, I do not see how we can tell whether the accusation against the defendants is set forth in the indictment with sufficient definiteness to satisfy the requirement of the Rhode Island constitution. This provides in article I, sec. 10: “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.”
The finding by the court that what is charged as the object of the conspiracy is a criminal offense, without determining just what that offense is, answers the first of the objections to the indictment which are stated by each defendant in his motion to quash the indictment, but it does not answer two others of these objections,
viz.,
that the indictment “fails to set forth sufficient facts with regard to the criminal offense, which it purports to charge said defendant with conspiracy to commit, so as to enable defendant to meet the accusation therein purported to be made against him;” and that it “fails to allege a criminal offense with sufficient certainty and precision as to enable the defendants therein to plead an acquittal or conviction thereof as a defense to a subsequent prosecution for the same offense.”
The finding of the court also fails, in my judgment, to meet the following contention, stated by the attorneys for the defendants in their brief filed in this court: “The phrase 'to steal the property’ in the indictment is so general that it is misleading. It comprehends larceny, embezzlement, burglary, robbery, larceny by trick or by false pretense and obtaining money or property by forgery. Likewise, 'property’ includes almost every conceivable interest or thing that may be the subject of ownership. And to charge that the defendants conspired to steal property is to charge many offenses instead of one offense.”
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I feel that these objections should be squarely met by the court, not only in fairness to the defendants, but also in order that the attorney general may know just what he must or may prove as the criminal object of the conspiracy under the indictment, in order to get a conviction. If my understanding is correct as to the proper procedure to be followed in ruling on the question of the constitutionality of a statutory provision, its proper construction should first be determined so far as that is pertinent to the question of its constitutionality. In the present cause, the basic question of construction, as I see it, is whether the crime of “larceny,” as the equivalent of thé crime of “stealing,” is now, under the law of this state, applicable only to feloniously stealing, taking and carrying away the personal property of another or is applicable also to what were originally the distinct crimes of obtaining money or other property by false pretences and of embezzlement. A study of the pertinent provisions of the statutes of this State has fully convinced me that the latter alternative is the correct one.
Chapter 397, sec. 15 of the general laws 1923, says: “Every person who shall obtain from another designedly, by any false pretence or pretences, any money, goods, wares, or other property with intent to cheat or defraud . . . shall be deemed guilty of larceny.” Section 16 says: “Every officer, agent, clerk or servant . . . who shall embezzle . . . any money or other property . . . shall be deemed guilty of larceny.” Section 17 is a special but similar provision as to an officer, agent or servant of any bank. In my judgment, the word “deem,” as used in these sections, has its usual significance as synonymous with “considered,” “treated as,” and that the effect is just the same as if the language were “shall be guilty.” The word “deem” is used in precisely this way in sec. 11 of the same chapter and that certainly describes the crime of “larceny” in the narrow sense, simply making it apply also to kinds of property which were onot the subject of larceny at common law.
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In my judgment, also, the obvious intent of the general assembly, in enacting these sections 15, 16, and 17 in substantially their present form, was not to create new crimes, since the crime of obtaining money or other property by false pretences and the crime of embezzlement had long been recognized, elsewhere, if not here, but to merge them substantially with the previously long recognized crime of larceny, in its narrow sense, into a composite crime of larceny, which could be proved by proving facts that had previously constituted larceny, or facts that had previously constituted obtaining money or other property by false pretences, or facts that had previously constituted embezzlement.
It is well known to all students of the criminal law that these three crimes were of the same general nature and that the distinctions between them were of a highly technical character. Exactly the same conduct by a man would be embezzlement or larceny according to whether or not he at the time held the property, which was involved, in a fiduciary capacity, or whether he had rightful possession of it or only custody. So also the special form of larceny known as "larceny by trick” was hardly distinguishable from obtaining money or other property by false pretenses. These questions were frequently very difficult or even impossible for prosecuting officers to determine beforehand or for juries and judges to determine at trials. The result was that the administration of justice was often greatly impeded and many miscarriages of justice occurred. It was undoubtedly to remedy this situation that the predecessors, in our statutes, of the above sections were enacted.
To make the matter doubly clear and to remove all reasonable doubt, the then existing chapter on criminal procedure was amended in 1915 by adding a section, which in its present form, as section 8 of chapter 407, reads as follows: "In prosecutions under sections fifteen, sixteen and seventeen of chapter three hundred ninety-seven of the general laws, it shall be sufficient to allege generally in the
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complaint or indictment, a stealing of money to a certain amount, or property of a certain value, without specifying any particulars of such stealing, and on the trial evidence may be given of any such stealing, embezzlement, . . . or obtaining, ... by false pretences”
etc.
during a certain period of time, without this being a variance.
I am fully convinced that by the enactment of these four sections, the legislative intent was clearly expressed that what formerly were or may have been the separate, but not very distinct, crimes of larceny, of obtaining money or other property by false pretences and of embezzlement, should be merged into one composite crime to be known as “larceny”; and that the word “steal” should thereafter, in criminal pleading and procedure in this State, be the equivalent of “commit larceny of,” with “larceny” having the broad meaning of the above composite crime, which could be committed in any one of three ways. If this be correct, it follows that, under the form of indictment now before this court, the object of the conspiracy is charged as, and could be proved to be, the commission of larceny in any of the three ways above mentioned.
Assuming that this construction be adopted, as in my judgment it must be, if any really definite construction is to be determined, the next question to be considered is whether, with this construction, the form of indictment involved in this cause, and made permissible by the statutory provision involved herein, is contrary to the constitutional requirement that the defendants shall be informed of the nature and cause of the accusation against them.
A similar question has been decided by the highest court of Massachusetts under R. L., c. 218, §38, which was a reenactment of Stat. of 1899, c. 409, of that commonwealth. Both of those chapters dealt with criminal offenses, defined some of them and provided short forms of indictment, which were made permissible in the prosecution of such offenses. These provisions were again enacted in substantially the same language in general laws 1932, c. 277.
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The enactments that came before the supreme judicial court of Massachusetts in several cases were as follows: “The words used in an indictment may, except as otherwise provided in this section, be construed according to their usual acceptation in common language; but if certain words and phrases are defined by law, they shall be used according to their legal meaning. The following words, when used in an indictment, shall be sufficient to convey the meaning herein attached to them: . . . Stealing. — Larceny.— The criminal taking, obtaining, or converting of personal property, with intent to defraud or deprive the owner permanently of the use of it; including all forms of larceny, criminal embezzlement and obtaining by criminal false pretences.”
In my judgment, these enactments showed precisely the same legislative intent as the above quoted sections of the Rhode Island statutes. While the pertinent provision of the Massachusetts constitution, being art. XII of the Bill of Rights, is expressed differently from that in our constitution, it is even stronger,'
viz.:
“No subject shall be held to answer for any crimes or offence until the same is fully' and plainly, substantially and formally described to him.” It has been held that these words only require “such particularity of allegation as may be of service to him in enabling him to understand the charge and to prepare his defence” and “such particulars as might be necessary to give him reasonable knowledge of the nature and grounds of the crime charged.”
Commonwealth
v.
Robertson,
162 Mass. 90, 96 ;
Commonwealth
v.
Sinclair,
195 Mass. 100, 105 .
An indictment for larceny in the short form made permissible by the Massachusetts statute,
viz.:
that the defendant “did steal one thousand dollars, of the property of the estate of John M. Downey, late of Warren, deceased, ” was sustained as constitutional in
Commonwealth
v.
Kelley,
184 Mass. 320 . In its opinion the court said: “Under this last statute the word 'steal’ in an indictment becomes a term of art and includes the criminal taking or conversion
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in either of the three ways above named, and hence the indictment is sustained, so far as respects the criminal nature of the taking or conversion, by proof of any kind of larceny, embezzlement or criminal taking by means of false pretences.” The court held that any possible objection to the indictment on the ground of indefiniteness was met by the statutory requirement of a bill of particulars at the request of the defendant. A similar requirement is contained in our statutes in P. L. 1932, chap. 1954, clause 7.
The same conclusions were reached in
Commonwealth
v.
King,
202 Mass. 379 , where the court said: “The effect of this statute, certainly when taken in connection with the provisions of the statute now contained in R. L. c. 218, §§38, 40, is to put it beyond a doubt that the former crimes of larceny, embezzlement, and the obtaining of property by false pretences, are now merged into the one crime of larceny as defined by those statutes.” In
Commonwealth v. Kozlowsky,
238 Mass. 379 , where the defendant was charged with an attempt to “steal” an automobile, the court, speaking through Rugg, C. J., at page 384, said: “The constitutionality of the criminal pleading act has been upheld so many times, it is no longer open to question.” In many states, statutory provisions have been enacted similar to those involved in the cases above discussed, and in the cause now before this court, and I have found no cases in which they have been held unconstitutional.
In
State
v.
Davis
and
Quigg,
39 R. I. 276, this court very carefully considered and held constitutional G. L. 1909, chap. 345, sec. 18, which, for purposes of procedure, merged together embezzlement and obtaining by false pretenses, and dispensed with the previous common law requirement of specifying the particulars of the embezzlement or obtaining by false pretenses. In the opinion a number of cases from other states are discussed with obvious approval, all sustaining the validity of such legislation under constitutional provisions like our own. The court also makes clear its view that while an indictment
must
give the accused
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information of the general
nature
and
cause
of the crime charged against him, and information to that extent cannot be left to be supplied by a bill of particulars, yet all further information, which may fairly be held to be needed by the accused in preparing for trial, may constitutionally be left to be furnished by such a bill. The most recent statutes in this state do little more than carry one step farther the liberalization of procedure accomplished by the section considered in
State
v.
Davis
and
Quigg, supra.
I do not maintain that the general assembly has the constitutional power to merge together, for the purpose of criminal procedure, crimes which are essentially different in their natures; but I am convinced that it has such power to merge together, for that purpose, such essentially similar crimes as larceny, obtaining money or other property by false pretenses, and embezzlement; and that it has thus merged them.
The rule of law stated in the opinion of the court, and supported by an overwhelming weight of authority in this country, should also be applied to this indictment and the statutory provision making it permissible,
viz.,
the rule that it is not necessary, in an indictment for conspiracy, to describe the crime intended to be committed, with the accuracy or detail essential in charging the commission of the crime itself. This is because the essence of the crime of conspiracy to commit a crime is the unlawful combination and agreement.
As above stated, the defendants in the indictment involved in this cause object that “the property of E. F. ” is not a sufficient description of the property which they are accused of conspiring to steal. As to the question thus raised, it has been stated in the opinion in
Lanasa
v.
State,
109 Md. 602 , that it is not necessary to the completion of the crime of conspiracy, that the conspirators should determine in advance the particular property which will be affected by the execution of the conspiracy. See also
People
v.
Arnold,
46 Mich. 268 ;
Williamson
v.
United States,
207 U. S. 425 ,
*192
447. An indictment for an attempt to commit a crime and one for breaking and entering a building with intent to commit a crime are closely analogous to an indictment for conspiracy to commit a crime, and it seems to be well settled that in indictments of either of the former kinds, if the attempted or intended crime be larceny, it is sufficient to charge an attempt or intent to steal goods or “property” without further description.
Josslyn
v.
Commonwealth,
6 Met. 236 ;
State
v.
Doran,
99 Me. 329 ;
Bloch
v.
State,
161 Ind. 276 . 1 Wharton, Crim. Proc., (10th ed.) §471, 2
idem,
§823. It therefore seems clear to me that the property which the defendants in the present cause are charged with conspiring together to steal is sufficiently described in the indictment.
John P. Hartigan, Atty. Gen., Michael De Ciantis, Third Asst. Atty. Gen.,
for State.
George Hurley, Walter Adler, Walter V. Moriarty,
for defendants.
In their oral argument, counsel for the defendants vigorously contended that under the indictment, as found, they would not, in case of an acquittal or conviction, be properly protected against a subsequent prosecution for the same offense. There is no specific discussion of this objection in their brief, and no authorities are cited in support of it. Whenever a former acquittal or conviction is pleaded as a defense and an issue is raised as to the identity of the offense or of the person concerned, a defendant has the right to resort not only to the record but also to oral testimony to establish the identity of person and the identity of the offense for which he was previously tried with the offence charged in the later prosecution.
State
v.
Davis
and
Quigg, supra.
I am satisfied that there is no merit in this objection by the defendants.
For the reasons above stated in this opinion, I agree fully with the final conclusion in the opinion of the court, that the portion of chapter 1954, sec. 3, clause 5, which is in question in this cause is not unconstitutional.