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finding an indictment was sufficient where it contained the words "willfully, unlawfully and feloniously" rather than "knowingly" as used in the statute
Summary of this case from Barton v. StateOpinion
No. 27932.
June 3, 1929.
1. INDICTMENT AND INFORMATION. Indictment for statutory crime need not use exact descriptive language of statute.
It is not essential, in an indictment for statutory crime, that exact descriptive language of statute be used, but equivalent words with substantially same meaning as those of statute may be substituted.
2. INDICTMENT AND INFORMATION. Language in indictment sufficiently specific to give notice of act made unlawful, and exclusive enough to prevent its application to other acts, is sufficient.
Where language used in indictment is sufficiently specific to give notice of act made unlawful, and exclusive enough to prevent its application to other acts, it is sufficient.
3. INTOXICATING LIQUORS. Indictment charging that defendant "willfully" had in his possession part of still held sufficient without using word "knowingly" ( Hemingway's Code 1927, section 2310).
Indictment charging that defendant willfully, unlawfully, and feloniously had in his possession integral part of distillery commonly called a still, in violation of Hemingway's Code 1927, section 2310, held sufficient without using word "knowingly," used in statute, since "willfully" and "knowingly" both mean "intentionally," and willfully implies that act is done knowingly.
APPEAL from circuit court of Warren county, HON.E.L. BRIEN, Judge.
Chaney Culkin, of Vicksburg, for appellant.
Mere presence at a still does not constitute an offense.
Medlin v. State, 143 Miss. 856; Powers v. State, 124 Miss. 425; Harnes v. State, 130 Miss. 673; Brazeale v. State, 133 Miss. 171; Anderson v. State, 132 Miss. 147.
Indictments upon statutes, particularly of a highly penal character, must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant judicially within it. They must also be clear and certain to every intent, and pursue the precise and technical language employed in the statute in the description of the offense.
Chit. Crim. Law, 280, 283, 13 S. M. 264; Ike v. State, 23 Miss. 525; Cook v. State, 72 Miss. 517; Riggs v. State, 26 Miss. 51; Jesse v. State, 28 Miss. 100; Sarah v. State, 28 Miss. 267; Wile v. State, 60 Miss. 260; State v. Hadder, 2 McCord (S.C.), 377; Edmondson v. State, 41 Tex. 496[ 41 Tex. 496]; Jones v. State, 13 Tex. 168 [ 13 Tex. 168]; State v. Potter, 28 Iowa, 554.
Where an omitted allegation goes to the very essence of the offense sought to be charged such omission is fatal.
Herron v. State, 118 Miss. 420; Section 1426, Code of 1906; Section 1182, Hemingway's Code; Cook v. State, 72 Miss. 517, 17 So. 288; Taylor v. State, 74 Miss. 544, 21 So. 129; State v. Traylor, 100 Miss. 544; Roberts v. State, 55 Miss. 421; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; Monaghan v. State, 66 Miss. 513, 6 So. 241, 4 L.R.A. 800; Adams v. Saunders, 93 Miss. 520, 46 So. 960; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340, et seq.; Stewart v. State, 95 Miss. 627, 49 So. 615; Gates v. State, 71 Miss. 874; State v. Perry, 80 N.W. 401; State v. Capps, 4 Iowa, 502; State v. Stalls, 37 Tex. 440; State v. Arnold, 39 Tex. 74; State v. Downer, 8 Vt. 428; State v. Hilton, 26 Mo. 199; Kernan v. State, 11 Ind. 471; Com. v. Kirby, 2 Cush. 577; State v. Maloney, 12 R.I. 251; Davis v. State, 44 Am. Rep. 128, 68 Ala. 58; 3 Greenl. Ev., sec. 10; Beasly v. State, 18 Ala. 535; People v. Smith, 57 P. 516; People v. Mitchell, 28 P. 597; Territory v. Cortex, 103 P. 264; Wilburn v. Territory, 10 N.M. 402, 62 P. 968; Bishop on Statutory Crimes (2 Ed.), sec. 733; 22 Cyc. 328; United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; United States v. Watkins, 6 Fed. 152, 7 Sawy. 85; Tynes v. State, 17 Tex. App. 123[ 17 Tex.Crim. 123]; 1 Bishop, Crim. Proc., sec. 612; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128, 100 N.E. 362; Com. v. Mixer, 207 Mass. 141, 93 N.E. 249, 31 L.R.A. (N.S.) 467, 20 Ann. Cas. 1152; Commonwealth v. Wills (Ky.), 89 S.W. 144.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
Where language used in an indictment is sufficiently specific to give notice of act made unlawful, and exclusive enough to prevent its application to other acts, it is sufficient. It is not necessary to use the exact words of a statute if equivalent words are used in the indictment.
Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236; Peebles v. O'Gara Coal Co., 239 Ill. 370, 88 N.E. 166; Suislaw Timber Co. v. Russell, 91 Or. 6, 178 P. 214; Peterson v. Pusey, 237 Ill. 204, 86 N.E. 692; Fry v. Hubner, 35 Or. 184, 57 P. 420; Catlett v. Young, 143 Ill. 74, 32 N.E. 447; Holt v. State, 140 N.E. 349, 107 Ohio State, 307; Johnson v. U.S. (C.C.A. Alaska), 260 Fed. 783; People v. Okomoto, 147 P. 598, 26 Cal.App. 568; Galveston H. S.A. Ry. Co. v. Bowman, 25 S.W. 140; North Carolina v. Vanderford (U.S.), 35 Fed. 282; State v. Stein, 51 N.W. 474, 48 Minn. 466; Bailey v. N.C.R.C. Co., 62 S.E. 912, 149 N.C. 169; Hazle v. So. Pacific Co., 173 Fed. 431; Potter v. U.S., 15 Sup. Ct. 144, 155 U.S. 438, 39 L.Ed. 214; Spurr v. U.S., 19 Sup. Ct. 812, 174 U.S. 728, 43 L.Ed. 1150; State v. Smith, 8 N.W. 870, 52 Wis. 134; Wong v. City of Astory, 11 P. 295, 13 Or. 538; Beale v. Yazoo Yarn Mill, 125 Miss. 807, 88 So. 411; American Surety Co. v. Sullivan, 7 F.2d 605; Johnson v. People, 94 Ill. 505; Ferguson v. State, 35 S.W. 369, 36 Tex.Crim. Rep.; Frantz v. Hanford, 54 N.W. 474, 87 Iowa, 469; Atkinson v. State, 202 S.W. 709, 133 Ark. 341.
An indictment does not fail to charge an offense because using "wilful" where the statute uses "knowingly;" the words being synonymous and "wilful" being of more extensive meaning.
Ex parte Cowden, 168 S.W. 539, 74 Tex.Crim. Rep.; State v. Rickenberg, 198 P. 767, 58 Utah, 270; Kline v. State, 44 Miss. 317; State v. Hinton, 139 Miss. 413, 104 So. 354; Roberts v. State, 55 Miss. 421; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; State v. Traylor, 100 Miss. 544, 56 So. 521.
Appellant was indicted and convicted in the circuit court of Warren county of unlawfully possessing a still for the manufacture of intoxicating liquor, and sentenced to the penitentiary for a term of one and one-half years. From that judgment, appellant prosecutes this appeal.
For a reversal of the judgment appellant relies principally on the action of the court in overruling his demurrer to the indictment. Appellant contends that the indictment charged no offense under the statute, because there was left out of it the word "knowingly." Appellant was charged in the indictment with a violation of chapter 245, Laws of 1924 (section 2310, Hemingway's Code of 1927). The statute is in this language: "It shall be unlawful for any person, persons or corporations to own or control, or knowingly have in his, their or its possession any distillery commonly called a `still' or any integral part thereof."
The indictment charged that appellant "did then and there willfully, unlawfully and feloniously have in his possession an integral part of a distillery commonly called a still . . ." It will be observed from the statute that to constitute the offense the defendant must knowingly have in possession the still or an integral part thereof. Appellant's position is that it is essential to a valid indictment under the statute that the word "knowingly" be used; and that neither the word "willfully" nor "unlawfully" nor "feloniously," used in the indictment involved, dispensed with the necessity of using the word "knowingly." It is not essential, in an indictment for a statutory crime, that the exact descriptive language of the statute be used. Equivalent words of substantially the same meaning as those of the statute may be substituted. Where the language used in the indictment is sufficiently specific to give notice of the act made unlawful, and exclusive enough to prevent its application to other acts, it is sufficient. Kline v. State, 44 Miss. 317; State v. Hinton, 139 Miss. 513, 104 So. 354. The Standard Dictionary gives "intentionally" as one of the meanings of each of the words "knowingly" and "willfully." It is inconceivable that an act willfully done is not also knowingly done. No decision of our supreme court directly in point is cited in the briefs; but there are numerous decisions from other jurisdictions cited in the attorney-general's brief, holding that the words "knowingly" and "willfully" in criminal statutes have substantially the same meaning. None to the contrary are cited in the briefs. We deem it sufficient to set out the definition of the word "willfully" as given in 3 Bouv. Law Dict. (3 Ed.), pp. 3454, 3455, in which definition the sustaining authorities are cited:
"Intentionally. In charging certain offenses, it is required that they should be stated to be willfully done. Archb. Cr. Pl., 51, 58. In an indictment charging a wilful killing, it means intentionally and not by accident; State v. Schaefer, 116 Mo. 96, 22 S.W. 447. It is distinguished from maliciously in not implying an evil mind; L.R., 2 Cr. Cas. Res. 161. It is synonymous with intentionally, designedly, without lawful excuse, and, therefore, not accidentally. Miller v. State, 9 Okla. Cr. 55, 130 P. 813.
"It implies that the act is done knowingly and of stubborn purpose, but not with malice; State v. Swaim, 97 N.C. 465, 2 S.E. 68; and in penal statutes, it means with evil intent, or with legal malice; Galvin v. Mill Co., 98 Cal. 268, 33 P. 93; or with a bad purpose; Com. v. Kneeland, 20 Pick. (Mass.), 220, quoted in Potter v. U.S., 155 U.S. 446, 15 S.Ct. 144, 38 L.Ed. 214. It is frequently understood as signifying an evil intent without justifiable excuse; 1 Bish. Cr. Law, 428.
"A willful act is one that is done knowingly and purposely, with the direct object in view of injuring another; Hazle v. So. Pac. Co. (C.C.), 173 F. 431.
"A `willful' violation of a factory act is established by proof of any conscious knowing or intentional failure to comply therewith, though there be no wrongful intent; Roberts, J. R.S. Co. v. Dower, 208 F. 270, 125 C.C.A. 470.
"In Pennsylvania it has been decided that the word maliciously was an equivalent for the word willfully, in an indictment for arson; Chapman v. Com., 5 Whart. (Pa.) 427, 34 Am. Dec. 565."
We find no merit in the other alleged errors, and we do not deem them sufficiently grave to call for a discussion by the court.
Affirmed.