By the Court. The Defendant was indicted for larceny in the District Court for Rice County, and a verdict of guilty was rendered. The case was reported to this *357court by the Judge before whom the cause was tried, iu accordance with the provisions of Sec. 220, p. 778, Comp. Stat. The record also presents the demurrer to the indictment and certain exceptions to the evidence introduced by the prosecution on the trial of the case.
That part of the indictment necessary to present the points raised, reads as follows, viz: “ The grand jurors for the County of Nice, and State oí Minnesota, upon their oaths, present that Myron D. Hinckley, on the morning of the 13th of October, A. D. 1859, with force and arms, at the town of Faribault, in the County of Nice and State of Minnesota, feloniously did steal, &c., &c., dimers ianlc notes, amounting m the whole to the sum of five hundred dollars, and of the value of fvoe hundred dollars.” The indictment then goes on to allege the taking a certain quantity of coin, the denominations and value of which are specifically stated, and then avers, “ and divers other pieces of gold coin current within this State iy the laws and usages thereof, and of the aggregate value of four hundred and eighty-three dollars, feloniously did steal, take, carry away,” &c.
One of the points specified in the demurrer to this indictment is, “ that it is n'ot therein alleged that this Defendant is accused by the Grand Jury, of the County of Nice, by this indictment of the crime of larceny, or oí any other crime.”
The Statute provides Comp. Stat. Sec. 66, p. 755,) that the indictment must contain, “ 1st, the title of an action, specifying the name of the court to which the indictment is presented, and the name of the parties; and, 2d, a statement oí the acts constituting the offence, in ordinary and concise language without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” It then goes on to state, that the indictment may be substantially in the form, oí which examples are given; the commencement of the body of an indictment being, “ A. B. is accused by the Grand Jury of the County of -, by this indictment of the crime of,” &c.
It will be observed that the second clause above quoted, prescibing the requisites of an indictment, is precisely like that prescribing the requisites of a complaint in a civil action. *358This fact, considered with the forms of the indictment given in the Statute, conclusively shows, that it was the intention of the Legislature to simplify the pleadings in criminal, as well as civil actions, and do away with the technicalities and repetitions which had obtained, and been more or less held necessary, under the former practice. "When a question arises as to the sufficiency of an indictment, the test to be applied is, whether it substantially conforms to the provisions of Section 66, of the Statute above quoted, and not whether it conforms to the precedents given in the subsequent section.
This indictment in the commencement of the body of the same, is not in accordance with the form given in the Statute, and in departing from the form there given, the pleader has not improved upon the language of the precedent. But we think the indictment substantially complies with the requirements of Section 66. The word “ present,” which has been used in this indictment, is the usual and appropriate word, employed in a presentment, as defined in Sec. 33, of Chapter 104, p. 752 Comp. Stat. But among the definitions given to this word are, “ to lay before a public body for consideration, as before a legislature, a court of judicature, a corporation,” &c.; “ to indict;” “ to give notice officially of a crime or offence.” The language used, therefore, is, in substance, that the Grand Jury, upon their oaths, do state, or lay before the court the facts following, &c. Then the indictment must state facts sufficient to constitute an offence, and if it does so, and in the manner required, the Statute is complied with. This indictment goes on to state, that the Defendant, at the time and place mentioned, “ feloniously did steal, take and carry away,” &c., the personal property mentioned and described in the indictment. Here the offence is plainly set forth, and the omission of the pleading to term it a “ crime,” or to “ accuse ” the party of “ committing the crime,” in express words, cannot change the legal effect of the fact pleaded. Thq facts constituting the offence must be stated, and from those facts the law determines its nature, which cannot be affected by any term or appellation, which the Grand'Jury may apply, or fail to apply to it. The indictment is also in compliance in this respect, with Sub. 6, of Sec. 76; *359p. 760, of Comp. Stat, and Sec. 77, of same page. The objection must, therefore, be held untenable.
Another objection raised by the demurrer to the indictment is, that “ the said djvoers bank notes, amotmti/ng m the whole to the sum of f/oe hund/red dollars, are not described with sufficient certainty by their several denominations and number, and when and where issued, and by what bank, and by what authority, and that the same were current within this State, and of value within this State.” The objection is also raised, that the description of a part of the gold coin mentioned in the indictment, is uncertain and insufficient.
At common law, the stealing of bank notes, and choses in actiqn, was not larceny. By Sec. 12, p. 710, Comp. Stat. the stealing any bank note, bond, promissory note, &c., is made larceny. This Statute, however, only enlarges the class of property, which may become the subject of larceny, and in no way affected the existing rule, as to the certainty and sufficiency of the description of the property alleged to have been stolen.
' The rule as to the certainty required in an indictment, is thus laid down in Archibald’s Crim. Pr. and Pl. Vol. 1, p. 88, viz: “ that where the definition of an offence, whether by a rule of the common law or by Statute, includes generic terms, (as it necessarily must,) it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species — it must descend to particulars.” The objects for which this particularity is required are stated in the notes to the text above quoted. And in note (1) on page 89, the author says: “It is frequently necessary, in the description oí an offence, to state the quantity, number, kind and value of the personal property which is essential to the constitution of the offence, or necessary to the right understanding of the indictment. In this statement, certainty, to a common intent, as it is technically termed, is generally sufficient, which seems to mean such certainty, as will enable the jury to decide in case of theft, whether the chattel proved to have been stolen, is the very same with that upon which the indictment is founded, and show judically to the court that it could have been the subject matter of thq *360offence charged, and thus secure the Defendant from any subsequent proceedings for the same cause, after a conviction or acquittal,” To the same effect are Whar. Am. Crim, Law, p. 116, et. seq.; Bur. Crim. Law, p. 318; 1 Chit. Crim. Law, 2d Ed. 229, 230. The rule, therefore, laid down by Mr. Archibald may be regarded as sound and well established, and has been adhered to with more or less fidelity by all courts whose decisions are worthy of consideration.
Tested by the above rules, is the allegation in the indictment with reference to the bank bills sufficiently certain ? I think not. In this case the number of the’bills stolen, is not stated, nor their denomination, nor the bank by which issued, nor that they were genuine, or current. No description whatever is given of a large amount of personal property alleged to- have been stolen, and of a nature so easily described. None of the objects for which certainty in a pleading are required are answered by such an informal allegation. Under such a statement, it would be quite possible that the Defendant might be put upon his trial for a different offence than the one found in the bill, nor is he put in possession of sufficient facts, to enable him to prepare for his defence; nor is it easy to see how a conviction or acquittal on such a charge could be a protection to a subsequent indictment for the same offence. Eor if the allegation be sufficient, the proof need go no further than to sustain it, and neither pleading or proof would show any thing to sustain a plea of autrefois acquit. Even in a complaint in trespass, such a description would be bad. In Playter's case, 5 Co. 35, a declaration in trespass qu. cl.fregit, et piscos suos copit, was held bad, because the number and kind of fish were not stated. This was held to be matter of substance. To the same effect are 1 Ventr. 272 and 329; 1 East. 583; 4 Burr. 2455; 1 Starr. 673. In the last case ( Wiatt vs. Essington,) the reason assigned is, that a recovery would be no bar to another action for the same goods, “ and this,” says the court in 2 Pick. 143, “seems to be quite a good reason.”
Referring to the authorities, I have been able to find none which sustain an allegation in an indictment, as defective in certainty as the one under consideration, and but one case, *361which even implies that such pleading could be held sufficient. That is the case of Larned vs. Commonwealth, 12 Met. 240, in which an indictment is set forth, containing an allegation, almost the same as that under consideration. But the court expressly states, that it is not called upon to decide whether such an'allegation is sufficient, though at the same time stating in substance, that it is not satisfied that the pleading would not be sufficient. The case of 9 Met. 273, also cited by the . counsel for the prosecution, does not raise the point. And the case of Haskins vs. The People, 16 N. Y. 344 is one in which the allegation is entirely different from the one under consideration, the statement being, “bank bills of banks tothejurors „ unlmown, and of a number cmd denomination to the jwrors unknown, of the value of six hundred dollars,” etc. Among the English reported cases, that which comes nearest to supporting the position of the counsel for the State, is cited in Arch. Crim. Pl., Vol. 2, note on p. 355, in which the indictment charged the prisoner with embezzling “ divers, to wit: nine bank notes for the payment of divers sums of money,” etc. The indictment was held sufficient, Lord Ellenborough, saying, that “the indictment in question had set forth the number, value and species, etc.
On the contrary, there are numerous authorities which hold that such an allegation as this in the indictment, is too uncertain and insufficient. In addition to those above cited, see Stewart vs. Commonwealth, 4 Serg. & R. 194; State vs. Dowell, 3 Gill & John. 310; Commonwealth vs. Boyer, 1 Binn. 201; Commonwealth vs. Maxwell, 2 Pick. 143; 2 Hale 182; The People vs. Jackson, 8 Bar. 637; People vs. Taylor, 3d Denio, 91; Johnson vs. The People, 4 Denio 364; The People vs. Caryl, 12 Wen. 547; State vs. Murphy, 6 Ala. 845; Salisbury vs. State, 6. Conn. 101; 13 John. 90; Lambert vs. The People, 9 Cow. 578. In those of the above cases where indictments have been sustained, the allegations complained of have been more certain and definite, than those in the case at bar.
It is not denied, but that the certainty required by the authorities, may be dispensed with in one case, which forms an exception to the rule, and which is allowed from the necessity of the case only, and in no respect militates against the prin*362ciple above stated. That case is, when, it is impossible for the jurors to state the facts with legal certainty, and when that fact appears in the indictment. This is held as a. sufficient excuse for the omission of the proper averments, and is allowed in order to prevent an entire failure of justice. 3 Denio 91; 16 N. Y. 347. In this case there is no allegation that a more particular description of the bills was unknown to the jurors; and indeed, it is not probable that such an allegation could have been truthfully made, as it appears from the case that the bills and coin had been reclaimed. Hence, there would seem to be no excuse for the omission more specifically to describe them. In the foregoing remarks, reference has been more particularly made to the allegation in the indictment concerning bank bills, but they apply for the most part, with equal force to that part of the indictment above quoted as to “ divers pieces of coin.”
But although the allegations in regard to the bank bills and a part of the coin, were insufficient, yet the demurrer was properly overruled by the court. Eor the demurrei; goes to the whole indictment, and if, omitting the objectionable parts, there still remains an offence properly charged, the indictment must be sustained. (Comp. Stat. Sec. 118, p. 765; 3 Denio 91; 3 Wen, 229.) In this indictment there is alleged the taking of a considerable quantity of coin, which is properly and sufficiently described. Those allegations which were insufficient, might have been regarded as surplusage, and the Defendant tried upon the others. The prisoner would not have been prejudiced in such trial, by those parts of the indictment objected to, if no proof had been introduced to sustain them.
Upon the trial of the cause, the prosecuting Attorney requested his witnesses “ to describe if you can any of the bank notes that were stolen from the safe ?” And the same testimony was also sought in reference to the coin, the description of which was objected to. To this evidence the counsel for the Defendant objected, but the court overruled the objection and received the evidence. This ruling was clearly erroneous and fatal to the verdict. Those allegations in the indictment being insufficient and uncertain, no proof could properly be received to sustain them. Nor is the error cur^d by the gen*363.eral verdict of guilty, for the only evidence which was received so far as the case shows, was that received under these defective allegations. And even had it appeared, that evidence was introduced to sustain that part of the charge well laid in the indictment, it would be impossible rfor the court to say, whether the jury would have found their verdict upon that alone, without also considering the improper evidence. Where improper evidence has been received, and it may have a tendency to prejudice a party, especially in a criminal case, a new trial should be granted. The case of Haskins vs. The People, 16 N. 7. 344, cited by the counsel for the prosecution, does not sustain the admission of the evidence here objected to. In that case the indictment states, that the “ number and denomination of the bills, etc., were to the jurors unknown,” and under such an allegation, proof may be introduced describing them. It further appeared in that case that there was positive testimony sufficient to have convicted the Defendant, upon the bills specifically described in the indictment. Upon this ground therefore, the Defendant is entitled to a new trial.
Previous to the finding of this indictment, the Defendant had been arrested on the same charge, and committed to the jail of Eice county. A motion was made in the court below on his behalf, to set aside the indictment, on the ground that “ he was not permitted to challenge the panel of the Grand Jury, or any individual Grand Juror, befox-e they x'etxx-ed, by reason of being in confinement, and that he had reason to believe and did believe, that good and sufficient causes and legal objections existed against the individual Grand Jurors, and against the panel which the court would have allowed under the Defendant’s challenge,” etc. The Defendant further claimed that he did not know when said Grand Jury were impanelled, sworn and charged by the court.
This motion was px-opex-ly ovexTuled by the cotu’t. The terms of the District Court, and the impanelling of Grand Juries, are matters fixed by law, and the Defendant cannot plead ignorance of the law, to relieve himself from any prejudice his rights may have sustained by reason thereof. The Defendant entirely fails to make a case for the interposition of the court in his behalf. He certainly knew that he had been com*364mitted to answer for the crime of larceny at the next term of the District Court of Eice County. He does not show that he even made any inquiry as to when the term was to be held, or that he was misled in regard thereto, or that he made any request of the court, or officer having him in charge, to appear in court, either in person or by counsel, to interpose a challenge, or that any cause of challenge did actually exist, or that he was ever informed that cause existed. We think no authority entitled to consideration can be shown for dismissing an indictment on siicli grounds as are here presented. The views of the court on this point are further stated in The State vs. Maher, decided at the December Term, 1859, 3 Minn. 444, and it is deemed unnecessary further to discuss it.
The verdict below is set aside, and a new trial granted.