The opinion of the court was delivered by The defendant, with one Amos Clayton, was jointly indicted for robbery. The indictment avers that the defendant "did then and there unlawfully and wrongfully, wilfully and feloniously, by means of force and fear, take from the person or immediate presence of Mrs. Nettie Newport, against her will, certain personal property, to-wit: eleven dollars in money and some chewing and smoking tobacco, all of the value of $12 in money, and then and there the personal property, goods and chattels of Albert Newport, and then and there in the lawful and peaceful possession of the said Nettie Newport, contrary to the statute," etc. Defendants demurred to the indictment on the ground that it "did not state facts sufficient to constitute a public offense." Demurrer was overruled and exception saved. Defendants were jointly tried and convicted. Clayton was granted a new trial and plaintiff in error was sentenced to a term of ten years in the penitentiary. Having moved unsuccessfully for a new trial and in arrest of judgment, he brings the case here and assigns error in the overruling of the demurrer to the indictment, and in the overruling of the motion for a new trial and in arrest of judgment.
It is objected that this indictment, stating in the disjunctive, that the property was taken from the personor immediate presence of Mrs. Nettie Newport, does not state that it was taken from either her person or from her immediate presence, and therefore does not state facts constituting the crime of robbery. *Page 509
In criminal cases the accused has the constitutional right "to be informed of the nature and cause of the accusation." (Amendment to Const. U.S. art. VI). The indictment must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the crime is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading that the indictment must furnish the accused with such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and also to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. For these facts are to be stated and set forth in the indictment with reasonable particularity of time, place and circumstances. (United States v. Cruikshank, et al.92 U.S. 542; Cooley's Const. Lim. 374; Wharton's Crim. Plead. and Prac. 153.)
The constitutional provision requiring the accused, in every criminal prosecution, "to be informed of the nature of the accusation," is based upon a presumption of innocence and upon the theory that an innocent man may be indicted as well as a guilty one, and that he will not be able to prepare for trial without knowing what he is to meet. The indictment in this case does not apprise the defendant against what he is to defend himself. It does not charge that the defendants took from the person of Mrs. Newport the property specified, nor does it charge that they took the property from her immediate presence, but charges that they did one thing or another, which *Page 510 can mean nothing. The inference from the language, as used, is not that the property was taken both from her person, and from her immediate presence; but that it was taken either from her person or her immediate presence, but which the grand jury did not know and did not say. Consequently, they have left the defendants in as much doubt as they were themselves. An indictment, the averments of which are stated in the disjunctive, as a general rule, are fatally defective. Disjunctive allegations are those which charge that the defendant did one thing or another. The rule is that, whenever the word "or" would leave the averment uncertain as to which of two or more things is meant, it is inadmissible. (Bishop New Crim. Procedure, 585). The certainty required in an indictment precludes the adoption of an alternative statement. If an indictment charges the defendant with one or other of two offenses in the disjunctive, as that he murdered or caused to be murdered, forged or caused to be forged; or that he broke into a barn or stable; or set fire to a house or shop, such indictment would be fatally defective for uncertainty: (Wharton's Crim. Plead. Prac. 161); State v. Drake, 30 N.J.L. 425;State v. Fairgrieve, 29 Mo. Apps. 643; Thompson v. State,37 Ark. 408; People v. Tomlinson, 35 Cal. 503). Matters that are essential to give information of the nature of the accusation and essential to a description of the offense, can not be omitted: (People v. Olmstead, 30 Mich. 431). Nor can such essential matters be stated in the disjunctive.
Counsel for defendant in error calls our attention to § 18, p. 196, of the laws of 1895, which reads: "And where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count," and contends that this provision authorizes a disjunctive form of allegation in the indictment. *Page 511 The objection to this indictment is not to the means by which the offense is alleged to have been committed, but to themanner in which it is alleged to have been committed. If the statute was intended to mean what counsel contends for it, we would not be willing to concede its validity in view of the above constitutional requirements as to indictments. We may concede that this constitutional provision was not intended to prevent the legislature from dispensing with matters of form only in the description of an offense, nor with any degree of particularity of specification in the description which did not give the defendant any substantial and reliable information of the particular offense intended to be proved; nor do we hold that it would not be competent for the legislature to alter in any respect the common law form of charging an offense; but statutes simplifying the forms of indictments must be confined to the omission only of such matters as are not essential to give information of the nature of the accusation and will not warrant the omission of averments essential to the description of the offense: (People v. Olmstead, 30 Mich. 431; Brown v.People, 29 id. 232; McLaughlin v. State, 45 Ind. 388).
We think that this indictment was bad for uncertainty, the allegations of the essentials of the offense being in the disjunctive.
II. This indictment was equally defective in another particular. The defendant is convicted of robbery in the first degree. The indictment charges the robbery to have been committed by "means of force and fear," but the fear that is essential to constitute robbery in the first degree, as defined by the statute, is: "Fear of some immediate injury to the person" of the party robbed, and the indictment must set forth the injury that was feared, as it is a part of the definition of the offense, and *Page 512 aver that such fear was that the injury would be immediate.
III. The defendant was convicted of having conjointly with one, Amos Clayton, committed the robbery. Section 2126 of the Laws of 1893, provides:
"Whenever two or more persons conjointly commit a robbery, or where the whole number of persons conjointly committing a robbery, and persons present and aiding such robbery, amount to two or more, each and either of such persons is punishable by imprisonment for life."
It is not a conjoint conviction or conjoint sentence that attaches the punishment of life imprisonment, it is the conjoint commission of the offense. The granting of a new trial to Clayton did not authorize the court to impose upon plaintiff in error a less punishment than the statute provides.
For the reasons stated herein, the judgment of the court below is reversed and the cause remanded with instructions to sustain the demurrer to the indictment.
All the Justices concurring.