The indictment was in two counts. By the first count, attempt was made to charge the defendant with obtaining *Page 562 $3,500.00 of G. A. Bowyer in Gilmer County by false pretenses. In the second count, it was attempted to charge the defendant with the larceny of said sum. The trial court sustained defendant's demurrer to the first count, but overruled the demurrer to the second. A trial of the issue upon a plea of not guilty, under the second count, resulted in a verdict of guilty and a penitentiary sentence of seven years.
The initial question goes to the sufficiency of the second count. It reads: "And the Grand Jurors aforesaid, do further present, that on the ____ day of November, 1921, the said A. F. Robison, in the County aforesaid, and in the state aforesaid, thirty-five hundred dollars ($3,500.00), the property of G. A. Bowyer, feloniously did steal, take and carry away, against the peace and dignity of the State." This count is challenged on the ground that it does not sufficiently describe the property alleged to have been stolen.
The common law obtains in this state save as changed by the constitution or by legislation. Constitution of West Virginia, Article VIII, sec. 21; Code, chap. 13, sec. 5. The common law rule covering an indictment for the larceny of money required particularization of the kind of money alleged to have been stolen. We have no statute changing the rule as to larceny.
"An indictment for stealing money is not sufficient, if it state only the aggregate amount, without any specification of the number, kind or denomination of the pieces; but the number of the pieces and their denomination, and whether of silver, gold or copper, should be stated, and regularly the value of each kind, if known. Hence a common law indictment for the larceny of money, which merely describes the subject of the larceny as a certain number of dollars in lawful money of the government, of a stated value, would be too indefinite and uncertain, and should, according to the great weight of authority, be quashed on motion. It is necessary to allege that the money stolen is lawful money or current coin of the United States or some other government." 17 Rawle C. L., 57.
To like effect: 36 Corpus Juris, 816; II Wharton's Crim. *Page 563 Pro., (10th Ed.), sec. 844; Hochheimer's Crim. Law, sec. 155;People v. Hunt, (Ill.) 96 N.E. 220, 36 L.R.A. (N.S.) 933, and note. As evidence of this requirement, see standard forms: Mayo's Guide, p. 400; Kerr's Criminal Forms, p. 1162, et seq; Hochheimer's Crimes and Criminal Procedure, sec. 715; Bishop's Directions and Forms, secs. 602-3; Encyclopedia of Forms and Precedents, Vol. 11, p. 248, et seq.
In Bishop's New Crim. Pro., (2nd Ed.), Vol. 3, sec. 704, the author says: "Simply to state the subject of the larceny as so many dollars, or so many dollars in money, without further particularization, is, by all, deemed ill." In Merwin v. ThePeople, (Mich.) 12 Am. Rep. 314, the court held bad for uncertainty, a charge of larceny of "one hundred and thirty-five dollars of the property, goods and chattels" of C. In the very able opinion in that case, the judge, speaking for the court, says:
"I have found no case, and no principle of common-law pleading, upon which such an indictment or information can be sustained without showing, upon the face of the instrument, some excuse for the want of greater particularity. By the well-settled principles of common-law pleading, the defendant was entitled, in fairness, to either a statement of the kind, denomination and number of the pieces, notes or bills claimed to have been stolen, or to an allegation of some excuse for the omission."
An indictment for the larceny of one hundred and thirty dollars was held insufficient in Barton v. State, 29 Ark. 68. In commenting upon the indictment, the court said: "We can find in no text book of precedents for indictments, as loose and vague a description of money when the subject of larceny, as in the indictment before us." Our search has been equally unfruitful.
It is also pointed out that the second count does not contain an allegation of value. Ordinarily, of course, value must be averred, but where the charge is for the larceny of money, properly described, and further characterized as current money of the United States, the better rule is that an averment of value is superfluous. II Wharton's Crim. Pro., (10th Ed.), *Page 564 sec. 854; Encyclopedia of Forms and Precedents, Vol. 11, p. 245. If the count in question were sufficient in particularizing the property stolen and in denominating it as current money of the United States there would be no necessity for an allegation of value. As it stands, an allegation of value would not help it.
On behalf of the state it is urged that the objections to the second count are purely technical and therefore should be ignored. What is meant by "technical"? Does it mean that which is useless, form rather than substance, or does it mean exactitude in matters which of necessity must be exact? Often, reasonable rules are attacked as technical when their purpose is merely to require accuracy. The term is much abused and frequently is made to carry a somewhat sinister meaning as though that which is technical in the law is something taboo, — to be interdicted in the administration of justice. In truth, the very guarantees of our liberties lie in the exactness of the law, — technicalities; among which, is the guarantee that one may not be put on trial for his life or liberty save upon indictment of a grand jury definitely charging him with a specific offense. Also, he is entitled to trial before an impartial and fully qualified jury of his peers, and to be confronted by the witnesses against him; and only once can he be put in jeopardy for the same offense. Technicalities? Yes, all of them. Exactitudes. And many more are like unto them. Some are substantive, others procedural. The charge of technicality seems to be a convenient cloak to which resort is not infrequently made in attempted justification for getting things wrong. By this means, it is sought to avoid the requirements of precision. Looseness of pleading, civil or criminal, almost inevitably leads to disaster. In the drafting of indictments, wherein from time immemorial it has been considered that there must be a high degree of completeness and precision, it is at least a safe and commendable course to adhere to the generally recognized requirements which, in the main, represent the wisdom and the experience of many generations of competent predecessors.
In the instant case, the charge is for the larceny of "dollars." *Page 565 Was it coin or paper currency? And, what kind of dollars? Mexican? Canadian? or of the United States of America? Does the presumption exist that the latter was meant? Charges of crime cannot be predicated upon presumption; they must be based upon accurate and definite allegation. While a situation such as that which is presented in this case, necessitating a reversal on a procedural matter, is unfortunate, it is much better thus than for the court to attempt to tear down or ignore time honored rules of accuracy in the preparation of indictments in order to let a lame case through.
This is not a defect that is cured by Code, chapter 158, sec. 11, being our criminal statute of jeofails. That statute was not meant to introduce "a carelessness or laxity in pleading, but merely to cure those defects which the over-nicety of the courts had introduced into the common law." Old v.Commonwealth, (Va.) 18 Gratt. 915. The statute does not reach a matter of substance in description of property alleged to have been stolen.
We reverse the judgment, set aside the verdict, sustain the demurrer to the second count and discharge the defendant.
Reversed; defendant discharged.