SUFFICIENCY OF AN INDICTMENT

DEPARTMENT OF AND CRIMINAL PRACTICE.

EDITOR-IN-CHIEF, PROF. GRORGE S. GRAHAM, Assisted by E. CLINTON RHOADS, C. PERCY WILLCOX.

STATE V. COSTELLO.1 THE SUPREME COURT OF ERRORS OF CONNECTICUT.

The defendant was convicted on an information charging that he "with force and arms wilfully did injure a public building and house of worship situate," &c. On appeal it was held that the information, although in the words of .the statute, was insufficient, in failing to set forth particularly the manner of the injury. As TO THE SUFFICIENCY OF THE DESCRIPTION OF AN OFFENCE IN AN INDICTMENT MERELY IN THE WORDS OF THE STATUTE. The, general rule on the subject words, however synonymous they of the sufficiency of an indictment may seem, can be substituted. But is declared in the cases of U. S. v. in all cases the offence must be set Mills, 7 Peters, 138 (1833); U. S. forth with clearness and all neces- v. Simmons, 96 U. S. 360 (1877); sary certainty to apprise the accused U. S. v. Carll, 1O5 U. S. 6II (1881), of the crime with which he stands and U. S. v. Pond, 2 Curt. C. C. charged." 265 (1855). In U. S. v. Simmons, supra, Mr. In U. S. v. Mills, supra, Mr. Justice Harlan, in delivering the Justice Thompson, in delivering opinion of the court, said (p. 362) the opinion of the court, said "where the offence is purely (p. 142): "the general rule is that, statutory, having no relation to the. in indictments for , it is as a general rule created by statute, it is sufficient to sufficient in the indictment to charge the offence in the words of charge the defendant with acts the statute. There is not that tech- coming fully within the statutory nical nicety required as to form description, in the substantial words which seems to have been adopted of the statute without any further and sanctioned by long practice in expansion of the matter...... cases of , and with respect to But to this rule there is the qualifi- some crimes, where particular cation, fundamental in the law of words must be used, and no other criminalprocedure, thatthe accused

1 25 Atlantic Rep. 477. Decided June 30, 1892. IN THE WORDS OF THE STATUTE.

must be apprised by the indictment definite enough, the defendant can with reasonable certainty of the apply for a bill of particulars, and nature of the accusation against the district attorney will be re- him, to the end that he may pre- stricted thereto : Williams v. Com., pare his defence and plead the 91 Pa. 493 (188o), and Corn. v. judgment as a bar to any subsequent Maher, 16 Phila. 451 (1883). This prosecution for the same offence." makes the present law in Pennsyl- In U. S. v. Carll, supra, it was vania somewhat different than in held that it is not sufficient to set other states. forth an offence in the words of the In the following cases, the indict- statute unless they "fully, directly ments stated the crimes merely in -and expressly, without any uncer- the words of the statute, and were tainty or ambiguity set forth all held to be good. the elements necessary to consti- In King v. Fuller, I B. & P. 18o tute the offence." (1797), itwas held sufficient to allege In U. S. v. Pond, supra, it was an endeavor to seduce a person serv- held that, in general, it is sufficient ing' in the king's army from his to describe an offence created by allegiance to the king without statute, in the words of the statute, specifying the means employed. ;unless they embrace cases which So in Boyles v. Com., 2 S. & R. the Legislature did not intend to (Pa.) 40 (I8s), it was decided ihat include within the law. If there an indictment charging the defend- be such cases, the indictment should ant with privately concealing the show that this is .not one of the death of a bastard child, need not cases thus excluded. set forth in what manner, or by In Hawkins Pleas of the Crown what acts, she endeavored to do so. .b. 2, c. 25, s. iI, it is said that it But in an indictment for fornica- is not sufficient to pursue the very tion and bastardy, the sex of the words of a statute unless by so child must be stated. Simmons v. doing you fully and expressly allege Com., i Rawle (Pa.), 142 (1829). the fact, in the doing, or not doing, The same decision was reached whereof the offence consists, with- with reference to an indictment out any uncertainty or ambiguity. charging the defendant with seduc- Mr. Wharton, in his work on ing and debauching a woman. The Criminal Law, 7th Ed., Vol. I, word "seduce," when used with 364 et seq., says, that in general it reference to the conduct of a man is sufficient to describe an offence towards a" woman, has a precise and created by statute in the words of determinate signification, and it is the statute, unless it is a case " in not necessary to charge the offence which the mere recital of the in any other language : State v. words of the statute do not consti- Pierce, 27 Conn. 319 (1858), and tute in completeness the descrip- State v. Curran, 51 Iowa, I12 (1879). tion of the legal offence." This rule was followed even in In Pennsylvania it is sufficient, the case of a felony, and an indict- since the Criminal Procedure Act ment charging the defendant, in of- March 31, i86o, if the indict- the words of the statute, with com- ment charges the offence substan- mitting an assault with a deadly tially in the language of the Act of weapon, was upheld by the Supreme Assembly. If, however, it is not Court of California. People v. Mar- SUFFICIENCY OF AN INDICTMENT seiler, Ii Pacific R. 503 (I886). Morgan, 20 S. W. Rep. (Mo.) 456 On the other hand, in some cases, (1892). the courts have required that in- In People v. Taylor, 3 Denio dictments should be extremely full (N. Y.), 91 (1846), the defendant and explicit, or in other words was charged with setting "on foot should be "certain to a certain in- a certain lottery, for the purpose of tent." As examples of this class exposing certain money to abide of cases may be cited Coke on Lit., the drawing of such lottery, he, the 3o3 a King v. Airey, 2 East, 33 said defendant, being unauthor- 41802); King v. Stevens, 5 East, ized, ".&c. Held, to be insufficient 244 (1804); U. S. v. Forrest, 3 as the indictment should have given Crauch C. C. 6o (1826); State v. some further description beyond a Seay, 3 Stewart (Ala.), 131 (183 o ) ; general statement of the purpose Com. v. Walters, 6 Dana (Ky.), of the lottery. And in Markle v. 290 (1838), and State v. Hand, I State, 3 Ind. 535 (1852), the indict- English (Ark.), 165 (1845). ment charged defendant substan- In England, under the game tially, with unlawfully making a laws, it is necessary to traverse certain lottery for a division of every legal qualification, as that property to be determined by the defendant was not possessed of chance, the making of which was lands of the clear yearly value of not authorized by law: Held, to be ,Cioo, &c., and itis not sufficient to bad for. not stating the species of merely allege that he was not duly property as property is a generic or legally qualified : King v. Hill, term. 2 Ld. Raym. 1415 (i725), and King The Supreme Court of Iowa, in v. Jarvis, i Burr. 148 0757). State v. Bitman, 13 Iowa, 485 (1862), In an indictment for conspiracy held that an information charging it is necessary to set forth the acts the defendant with cruelly and in- specifically, and show the intended humanely whipping and beating his means by which the fraud was to own child, being about three years be compassed: Lambert v. People, old," was insufficient, in not set- 9 Cowen (N. Y.), 578 (1827), ting out the name of the person and Hartman v. Com., 5 Pa. 6o upon whom the offence was com- (1847). mitted. Likewise an indictment for obtain- In Quinn v. State, 35 Ind' 485, ing goods under false pretenses, the indictment charged the defend- must set forth all the material facts ant, in the words of the statute, and circumstances which the prose- with haviAg voted at an election, - cutor would be bound to prove in "not having the legal qualifications order to procure a conviction : of a voter." Held, to be insuffi- Com. v. Strain, io Metcalf (Mass.), cient for not specifying what quali- 521 (1845); People v. Gates, 13 fications the voter lacked-for- Wend. (N. Y.) 311 (1835), 1 Chitty, alleging, not a fact, but a conclu- 141 ; State v. Philbrick, 31 Me. 4O1 sion of law. A similar decision (I85O), and Com. v. Galbraith, 24 was reached in State v. Bruce, 5 Leg. Int. (Pa.) 117 (1867), and Rus- Ore. 68 (1874), and State v. Moore, sell on Crimes, 9 th Ed., Vol. II, 3 Dutch (N.J.),^io.5 (I858). Inthe 669. But these details may be dis- case, however, of State v. Lock- pensed with by statuter State v. baum, 38 Conn. 400 (1871), the IN THE WORDS OF THE STATUTE. court upheld an information charg- did "wilfully and maliciously as- ing the defendant in the words of sault one, Bridget McCoy:" Held, the statute, with attempting to vote that it was insufficient in not stat- illegally at an elector's meeting, by ing "the acts constituting the assuming the name of another. offence." It is not enough to The court said that th6 defendant merely charge the commission of a must show that additional aver- crime by its technical name. ments are necessary to insure a fair So, in another case, the defend- trial or protection against another ant was convicted of presenting for pfosecution. payment 'a pension certificate, In State v. Allen, 32 Iowa, 491 which the indictment alleged he (1871), the defendant was charged had procured upon false and fraudu- with selling "intoxicating.liquors lent proofs, and by unlawful and in violation of the laws of theState fraudulent devices. On motion in of Iowa." Held, to be insufficient arrest of judgment, the court said as the name of the purchaser that the allegations were not suffi- should have been stated, if known. cient to inform the accused, with And in People v. Burns, 6 N. Y. S. that certainty which the law re- 61r (1889), the defendant was in- quires, of the nature of the accu- dicted for selling impure milk. On sation against him, to,the end that demurrer it was held that the name he might prepare his defence and of the purchaser should have been plead the judgment as a bar to any stated, if known, and if it was not, subsequent prosecution for the same such fact should have been alleged. offence. U. S. v. Goggin, x Fed. To constitute a sale, there must R. 49 (188o). have been a purchaser, and the de- On a prosecution under the Act fendant was entitled to be informed of May 3o, 1870, known as the who such purchaser was so that he "Enforcement Act," the Supreme could disprove such sale on the Court of the United States, held trial of the cause. that an indictment was insufficient In another case, the defendant which charged the defendants, sub- was indicted under a statute which stantially in the language of the provides that "every person who statute, with banding together with shall hire any horse, and shall wil- intent to unlawfully and feloniously fully make any false statement iiure, oppress, threaten and in- relative to the distance, time, place timidate two citizens of the United or manner of using the same with States, of African descent, and pre- intent to defraud, shall be pun- vent them from exercising their ished by fine," &c: Held, that it lawful right and privilege of peace- is not sufficient to describe such an ably assembling together, and of offence in the general language of enjoying those rights which are the statute, but the misrepresenta- secured to them by the Constitu- tion, and the person to whom made tion and laws of the United States. must be stated with particularity. Mr. Chief Justice WAimt, in de- State v. Jackson, 39 Conn. 229 livering the opinion of the court, (1872). said (p. 558) "It is an elementary In State v. Murray, 41 Iowa, 58o principle ofcriminal pleading, that (1875), the defendant was convicted where the definition of an offence, on an information charging that lie whether it be at common law or by 14 210 SUFFICIENCY OF AN INDICTMENT

statute, includes generic terms, it indicted in the words of a statute is not sufficient that the indictment prohibiting combinations, contracts shall charge the offence in the same or conspiracies in restraint of trade, generic terms as in the definition; and making it a to but it must state the species,-it monopolize, or attempt or con- must descend to particulars." U. spire with others to monopolize, S. v. Cruikshank, 92 -U. S. 542 any part of the trade or com- (1875). merce among the several States A decision very similar to that in or with foreign nations: Held,that the principal case was reached by the indictment was insufficient, as -the Supreme Court of Iowa in the means should have been stated State v. Bitcher, 79 Iowa, iio whereby it was sought to monopo- .(i89o), where the defendant was lize the market, in order that the ,convicted of "committing the court might see whether they are crime of wilfully and unlawfully illegal. interrupting and disturbing a It has, however, been con- school:" Held, in arrest of judg- sidered that "courts should not be ment, that the indictment was de- astute to discover defects in an in- fective because the acts constituting dictment," and they have, there- the offencewere.not set forth. "The fore, held that indictments are suf- statement does not show what was ficiently technical which state the done, excepting by the averment offence so plainly that a man of of a legal conclusion." ordinary capacity would readily In another case the Supreme understand the nature of the of- Court of South Carolina decided fence charged. This alone is the that an indictment for the violation criterion of sufficiency. Such an of a written contract to serve as a indictment is "certain to a common laborer, which did not set out the intent:" Stephen v. State, ii Ga. contract or show that the contract, 225 (1852); Com. v. Ramsey, I which is alleged to have been Brewster (Pa.), 422 (y867) ; State v. broken, was one contemplated by Wimberly, 3 McCord (S. C.), 19o the statute, did not charge an in- (1825); Sherbon v. Com., 8 Watts dictable offence. The statute does (Pa.), 212 (1839) ; U. S. v. Fero, 18 not purport to include every con- Fed. R. 9o (1883), and In re tract between a laborer and a laud- McDonald, 33 Pacif. Rep. (Wyo.) lord. State v. Williams, io S. B. 19 (1893). R. 876 (I890). In Lamberton v. State, 12 Ohio, In Luter v. State, 22 S. W. Rep. 282 (1842), Mr. Justice Birchard, in (Tex.) 140 (1893), the defendant delivering thb opinion of the court, was convicted on an information said (p. 284): "It is a rule of crimi- charging him, in the words of the nal law, based upon sound princi- statute, with preventing another ples, that every indittment should person from performing the duties contain a complete description of of "a lawful employment :" Held, the offence charged. That it should on appeal, that the information was set forth the facts constituting the defective in not setting forth the crime, so that the accused may have nature of the employnent notice of what he is to meet; of the In U. S. v. Patterson, 55 Fed. act done, which it behooves him to Rep. 605 (1893), the defendant was controvert, and so that the court, IN THE WORDS OF TIE STATUTE. 211 applying the law to the facts some marked exceptions, as indict- charged against him, may see that ments against a common scold: a crime has been committed. A Stratton v. Com., io Metcalf contrary doctrine would deprive (Mass.), 217 (1845); a common bar- the accused of one of the means rator, Com. v. Davis, ii Pick. humanely provided for the protec- (Mass.) 432 (1831) ; and the keeper tion of innocence." And this de- of a common bawdy-house, Com. v cision was followed in Smith v. Pray, 13 Pick. (Mass.) 362 (1832). State, 2z Neb. 552 (1887). In such cases the offence may be It is thus seen that the defendant charged in general terms : r Chitty must ordinarily be charged with Crim. Law, 23o, and Bouvier's Law some particular offence, and not Dict., 7o. with being an offender in general. C. PERCY " TrLLCOX. To this rule, however, there are

NoT= BY . C. RHOADS, Esq. The principal case brings up the support the conclusion of the law, question of particularity in indict- as to render it necessary for him to ments. make any answer to the charge. The general rules regarding par- (e). To enable the court, looking ticularity in indictments are sub- at the record after the conviction, stantially as follows: to decide whether the facts charged "The degree of particularity are sufficient to support a convic- necessary in setting out the offence tion of the particular crime, and to can best be determined by examin- warrant their judgment. ing the objects for which such (f). To instruct the court as to particularity is required. These the technical limits of the penalty objects may be specified as follows: to be inflicted. (a). In order to identify the (g). To guide a court of error in charges, lest the grand jury should its action in revising the record." find a bill for one offence and the Wharton's Criminal Practice, T66. defendant be put upon his trial for Indictments formerly were drawn another. so as to include much which would (b). That the defendant's convic- clearly be improper to-day as being tion or acquittal may enure to his evidence. This was due to the fact subsequent protection, should he be that the presentment of the grand again questioned on the sale jury was formerly not only an grounds. accusation involving a prima facie (c). To warrant the court in case against .the defendant, but granting or refusing any particular practically an adjudication of facts right or indulgence, which the from which the defendant acquitted defendant claims as incident to the or purged himself by the " Ordeal, " nature of the case. or, though rarely by combat or (d). To enable the defenadant to witnesses. prepare for his defence in particular After time had modified the old cases, and to plead in all; or, if he procedure in the modern, minute- prefer it, to submit to the court by ness and particularity of statement demurrer whether the facts alleged remained. We have examples of (supposing them to be true), so this in modern times. SUFFICIENCY OF AN INDICTMENT

For instance, the indictment in vided that the mosttrumpery failure the Webster-Parkman case charged to fulfil the requirements of an Dr. Webster in four, counts, with irrational system should be suffi- the murder of Dr. Parkman, the cient to secure him practical impu- method being varied in each, and nity for his crime. On the other the last being as follows: "That hand, in favor of the Crown, it was. the said John W. Webster, at Bos- provided that the prisoner should ton, aforesaid, in the county afore- not be entitled to a copy of the said, in a certain building known indictment in cases of felony, but as the Medical College, there situ- only to have it read over to him ate, on the 23 d day of November slowly, when he was put up to last past, in and upon the said plead, a rule which made it exceed- George Parkman, did feloniously, ingly difficult for him to take willfully, and of malice afore- advantage of any defect. But then thought, make an assault, and him, ,again, any person might point out the said George Parkman, in some such a flaw, and it was in a sort of way and manner, and by some a way the duty of the judge, as means, instruments and weapons to counsel for the prisoner, to do so. the jurors unknown, did then and On the other hand, some flaws there feloniously, willfully, and of were and others were not waived malice aforethought, deprive of by pleading to the indictment. life so that he, the said George " In short it is scarcely a parody Parkman, then and there died." to say that from the earliest time to Mr. Justice STEPHEN, in his our own days the laws relating to History of the Criminal Law of indictments was much as if some England, comments thus on the small portion of the prisoners con- necessity of particularity in indict- victed had been allowed to toss up ments : for their liberty. " I do not think that anything "The rule that the indictments has tended more strongly to bring must set out all the elements of the the law into discredit than the offence charged, was some sort of importance attached to such tech- security against the arbitrary multi- nicalities as these. As far as they plication of offences and extensions went their tendency was to make of the criminal laws by judicial the administration of justice a legislation in times when there solemn° farce. Such scandals do were no definition of crimes estab- not seem, however, to have been lished by statute,.or, indeed, by any unpopular. Indeed, I have some generally recognized authority. doubt whether they were not popu- If, for instance, it had been lawful lar, as they did mitigate, though in to indict a man in general terms, an irrational, capricious manner, say for high treason, and if the the excessive severity of the old judges had had to say what con- criminal law. stituted high treason, the law might "There was a strange alteration have been stretched to almost any in the provisions of the law upon extent. The necessity for setting this subject, by which irrational forth that the prisoner imagined advantages were given alternately that the death of the king, and to the Crown and to the prisoner, manifested such imagihation by In favor of the prisoner it was pro- such and such overt acts, was a IN THE WORDS OF THE STATUTE. considerable security against such ions, to expect the prosecution to an extension of the law, though, as give the defendant as little knowl- the history of the crime of treason edge of the details of the crime will show, it was not a complete charged as possible, and for the one. The same principle was illus- defendant to claim a liberal inter- trated by indictments for libel in pretation of his constitutional the latter part of the last century, rights. Around this contest the and even in our own days instances cases naturally arrange themselves. may be found in indictments for The statute cannot override the conspiracy in which laxity of plead- defendant's constitutional right to ing might have had serious conse- be "informed of the nature and quences to the accused, The fact cause of the accusation," V. Amend- is that looseness in the legal defini- ment to Federal Constitution, and tions of crimes can be met only by similar provisions exist in all state strictness and technicality in indict- constitutions: Penna. Art. I, 9. ments, and that indictments may All statutes must be interpreted in be reduced with perfect safety to view of this right of the defendant. perfect simplicity as soon as the It is clear that the defendant is law has either been codified or entitled to something more than to reduced to certainty by authoritive be charged with a crime in the writings which practically supply words of the Act, for instance, an the place of a code." indictment charging that John The history and the general rule Jones "had unlawful carnal knowl- relating to particularity in indict- edge of a woman forcibly and ments lead us to the main question against her will" would be to involved in the principal case, charge the crime in the words of namely, the effect of statutory the Act of Assembly of Pennsylva- provisions providing that indict- nia defining the crime of rape, but ments are sufficient when the to draw a good indictment, the charge is stated in the words of the prosecution would have to allege statute. the name of the person ravished It is natural, under such provis- and the time and place.

CASES IN WHICH THE INDICTMENT HAS BEEN HELD INSUFFICIENT THOUGH IN THE WORDS OF THE ACT. False Pretences.-Com. v. Mul- * of, or putting off any instrument holland, 14 U. S. 245. Indictment -whatever, or for obtaining or for false pretences quashed because attempting to obtain any property the pretences were not set out. by false pretences, to allege that Forgery.-Com.v. Mulholland, 5 the defendant did the act with the W. N. C. 208. Indictment for for- intent to defraud, without alleging gery must show that the written the intent of the defendant to instrument was calculated to de- defraud any particular'person.I It fraud. Judge Thayer said : "Nor is sufficient under this section to is the defect of this indictment charge a general intent to defraud aided by the I 9 th section of the instead of charging an intent to same Act, which declares that 'It defraud a particular person, but shall be sufficient in any indict- the charge must, nevertheless, con- ment for forging, offering, disposing tain all the necessary elements of a SUFFICIENCY OF AN INDICTMENT criminal offence, and must set forth alleges proceeding in which oath an instrument in its nature and was taken, name of officer before upon its face of a character to whom taken, his authority to take injure some one, or must show this it, its falsity and materiality. by averment of extrinsic facts. It Rivers v. States, 12 So. R. 434, was not intended to say that every Ala. (1893): Indictment for per- indictment charging forgery, which jury must state the facts falsely alleges that the act was done with sworn to, and the officer or court intent to defraud, should be suffi- before whom or in which the cient. As well there might be offence was committed. Indict- said that, under the language of ment charging that defendant did the same section, every indictment corruptly give or offer to give $3 charging the offence of obtaining with intent to induce him to com- property by false pretences, which mit a certain crime punishable as alleges that the act was done with felony, to wit, the crime of perjury, intent to defraud, is sufficient-a was insufficient. Williams v. Com. proposition which was distinctly 91 Pa. 493 (1879): Indictment for repudiated by the Supreme Court perjury. Oath was set out. Motion in Com. v. Frey, 14 Wright, 245, to quash denied, but Bill of Par- where it was expressly ruled that ticulars granted, Justice Trunkey such an indictment in order to be saying : "In simplifying the indict- good, must set forth particularly ments it was not the intention to what the false pretences were." make their brief ajnd comprehensive Judge Thayer further says in the terms a cover for snares to be same case: sprnngupon the accused." Grattan "This section of the Crhminal v. State, 71 Ala. 244 (1892): Not Procedure Act was not intended to sufficient to follow words of statute authorize a loose method ofcriminal unless the indictment alleges the pleadifig, by which air accused fact in doing or not doing of which person might be put upon trial the offence consisted. uppn general, vague, .indefinite, Offences againstthe LiquorLaws. and insufficient charges, but only -U. S. Simmins, 96 U. S. 36o : to compel him to make his objec- Indictment for illegal distilling. tions to the indictment before the Defendant was charged with pro- trial instead of afterwards, and this curing to be used, a still. Held, is the constructiofi which has been that the party who used the still put upon it by this court, in Com. should be named. "The accused V. Galbraith, 6.Phila. Rep. 281, and must be apprised with reasonable by the Supreme Court in Coin. v. certainty of the accusation against Frey, 14 Wright, 249." him . . . . an indictment not so People v. Foote, 52 N. W. 1036 framed is defective although it may Mich. (1892) : follow the language of the statute." Variance between complaint and State v. Stephen, 12 So. R. 883; warrant not fatal when complaint Seifried v. Com. Ioz Pa. 200: In- contained the truth. dictment under general liquor law, Asking defendant of criminal act committed in a locality having acts when under cross-examination. a special prohibitory status. Indict- PeiJury.-Walker z,. State, ii So. ment held insufficient. - R. 4oi (Ala.): Indictment which Offenses against the Post Office IN THE WORDS OF THE STATUTE.

Laws.-U. S. v. Hess, 124 U. S. 204: constitutional right to demand the Indictment for "scheme to defraud nature and cause of his accusation, .... by means of the post office so that he may identify the particu- establishment of U. S." Indict- lar charge and offence:" Turnip- ment in words ofstatute insufficient. seed v. State, 6 Ala. 666; Anthony Blaspihemy.-Undegraff v. Com. v. State, 29 Ala. 28 ; Beasley v. ii S. & R. Pa. 41o: In an indict- State, 18 Ala. 535; Grattan v. ment for blasphemy, words com- State, 71 Ala. 344; Carter v. State, plained of should be set out. Com. 55 Ala. 1t; Luter v. State, 225 W. v. Prenner (Anarchist Case), Q. S. iio (Tex.); 15 Criminal Law Mag., Phila., December Term, 1891, No. pages 750-56. 494, M. S. S. Ofurder.-Little v. State, 33 N. Slander.-Davis v. State, 22 S. R. R. 417 (1893), Ind: Indictment XV. 979, Texas (1893) : Information for murder in words of statute. for slander described words spoken Held, bad as not giving circum- in presence of P. Complaint had stances. Citing: State v. Record, stated them as being spoken in 56 Ind. 507; 1o Amer. & Eng. presence of G. Held, variance. Ency. 522; I Best Criminal Prac- Libel.-AMiles v. State, i So. R. tice, 599-6oo; Shepherd v. State, 4o3, Ala. (1892): An affidavit 54 Ind. 25; Howard v. State, 67 which does not charge an offence, Ind. 401; Thomas v. Com. 20 S. does not authorize the issue of a W. 226, Kentucky (1892). warrantandsubsequentprosecution. .-State v. Van Cleve, 32 Defendant tried "for defamation. Pac. R. 461 (Washington): Name Affidavit that defendant "malicious- of owner material. Amendment ly spoke . . . . imputing the com- not allowed. McCowan v. State, mission of a felony by J. W. R." 22 S. W. 955 Ark. (1893) : Indict- While in the words of the act the ment for larceny charging theft of statute does not prescribe with two jackets owned by "Conneevey definiteness the constituents of the & Co.," names of firm not stated. offence. "The defendant has the Held, insufficient. R. C. R.