The learned opinion of the majority of the court is fully in accord with the ancient common law practice. It is true that the opinion cites some modern authorities; but the latter speak not from their own wisdom or experience, as the court would indicate. On the contrary, they close their eyes to modern conditions and grope back until they fasten on some such case as State v. Longbottoms, 11 Humphreys (Tenn.) 39, which, in turn blindly attaches to older English decisions. Mr. Justice Holmes disposes of any claim this character of decisions may have to representing the wisdom of past generations, as follows: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from *Page 566 blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. R. 457, 468-9. (With deference to the erudite Justice, I would substitute the word "unsatisfactory" for the word "revolting.") Those early English decisions were doubtless justified by conditions then prevailing. England's soldiers returning from wars on the continent, and her ships returning from trade and conquest may have flooded the country with foreign coins. There may have been ignorance or uncertainty among the people as to the identity and value of such coins. But whatever the reason then for requiring minute specification of money in indictments, that reason does not exist now in reference to our money. Descriptive phrases can add nothing at present to the popular conception of the word "dollars." But the majority opinion ignores the completeness of that conception and reverts to Elizabethan refinements and niceties, asking "Was it coin or paper currency? And what kind of dollars? Mexican? Canadian? Or of the United States of America?" These questions would not be asked if the majority would but lift its vision to the present. A Mexican dollar is as much an object of curiosity in this section now as a coin of George III. Never having yielded to the lure of Canada, and of things Canadian, the knowledge of this Court that Canada even mints a dollar was gleaned solely from a book on numismatics. And as to silver dollars of the United States — "Oh where are the snows of yesteryear?" (A friend mentioned to me, as a matter of interest, having seen a United States silver dollar recently in Italy.)
The word "dollar" is in daily use by every adult in the United States. Every article purchased or sold is valued by the dollar (or its fractions). The usual pay for service in any capacity is in dollars. Every check drawn is an order for, and every note given is a promise to pay, dollars. The statute on larceny itself measures the punishment by the value of the stolen property in dollars. The courts take bonds, assess fines and render judgments, all payable in dollars. And everywhere in this country, on the street, in the home, the school, the church, the store, the factory, the bank, the legislative hall, and the courtroom, whenever the word "dollar" is mentioned *Page 567 it always means one and the same thing — the monetary unit of the lawful currency of the United States. "A dollar is the unit of our currency. It always means money or what is regarded as money." U.S. v. Van Anken, 96 U.S. 366, 368. "Everybody in this country knows that the word dollar means a certain amount of money," said Anders, J., in State v. Ryan, 34 Wash. 597, 604. "There is no ambiguity about the word 'dollars.' If any word has a settled meaning at law and in the courts it is this. It can only mean the legal currency of the United States."Halstead v. Meeker, 18 N.J. Eq. 136, 139.
If there is now no uncertainty about the meaning of the word "dollars," why require amplification merely because there was uncertainty about money at a former time? If at present the word "dollars" always means lawful money of the United States and is so understood by everyone, then the presumption to that effect suggested in the majority opinion is entirely gratuitous. An indictment for a theft of dollars is just as significant under that definition as if the word "dollars" were followed by the words "lawful money of the United States." "Dollars" (as thus defined) implies value, and an allegation of value in connection with the word, would be downright surplusage. While the common law requires exactness in pleading, it does not require redundancy. An indictment is required to go no further than to notify the accused with certainty of the nature of the offense charged. 10 Ency. Pl. Pr. 473. "No greater particularity is required (in an indictment) than to express the same fact in every day parlance." 12 Stand. Ency. Pro. 304, note a. I am not to be understood as favoring the relaxation of the rule requiring certainty in pleadings. I merely oppose too "great strictness" in indictments which has been declared to be "a blemish and inconvenience in the law" by one of its greatest proponents. See 2 Hales Pleas of the Crown 193. As the word "dollars" is so well defined now, it seems to me that a charge of a theft of dollars is sufficiently specific to meet all reasonable requirements of the common law. Courts should administer laws, in the language of a great lawyer, "with a view to the conditions of this generation, and not to those of generations dead and *Page 568 buried centuries ago." Lyman Trumbull before the Ill. St. Bar Ass'n., Jan. 24, 1893.
Now, if it be material for the accused to know the denominations or the character of the dollars alleged to have been stolen, that information can be furnished, on request, by a bill of particulars. In Dempster v. Purnell, 3 M. Gr. 375, 388, 133 Reprint Eng. R. 1189, 1194, decided in 1841, Maule, J., declared: "In proceedings according to the course of the common law, such a thing as a bill of particulars is not known." This declaration is accepted and followed in 3 Ency. Pl. Pr. 518, and 4 Stand. Ency. of Pro. 377. It is not entirely accurate however. A bill of particulars was known even to the ancient common law, but its recognition was so rare as to render its use negligible. See the rare instances of its use, cited in the leading cases of Comm. v. Snelling, 15 Pick. (Mass.) 321, 328, etc.; Tilton v. Beecher, 59 N.Y. 176,184, etc.; Mathis v. State, 34 So. (Fla.) 287, 289, etc. The use of bills of particulars became general only within the last century. As late as 1917, Burks, J., said there was no case in Virginia involving the right of an accused to demand a bill of particulars though admitting the practice was common in a great majority of the states. See Pine v. Comm., 121 Va. 812,93 S.E. 652, 659. The first reported application of a bill of particulars to a criminal case in this jurisdiction was in 1910. See State v. Rr. Co., 68 W. Va. 193. This case was followed by State v. Lewis, 69 W. Va. 472, definitely making the bill a part of our criminal procedure. The bill is not a part of the indictment, and is not treated as a pleading. It cannot take the place of essential averment. However, if the indictment charges an offense, the bill may be used to "amplify" the charge. Anno. 10 A.L.R., 982-3; 4 Stand. Ency. Pro. 378. "A bill of particulars is for the purpose of furnishing details omitted from the accusation or indictment, to which the defendant is entitled before trial," said LIVELY, JUDGE, in State v. Counts, 90 W. Va. 338, 342. Its object, said Burks, Judge, in Pine v. Comm., supra, is "to supply the fault of generality," and "to state with greater particularity than is done in the indictment the cause and nature of the accusation." *Page 569
As a bill of particulars was not used in the practice of the ancient common law, the detailed information required was necessarily expressed in the indictment. But that necessity has been eliminated through our modern use of the bill. It is no longer necessary or desirable to cumber an indictment with details which may be of no importance to an accused, but which can be supplied later if requested.
The chief advantage of the common law over other systems of laws has been its adaptability to new or changed conditions. See generally 12 C. J. 178-9. It has certain fixed principles; but from those principles it evolves new rules as new conditions require. It also changes or discards old rules when no longer applicable. Hence, the maxim, cessante ratione legiscassat ipsa lex, (with the reason of law ceasing, the law itself ceases). The adaptability of the common law to changed circumstances has been termed "its peculiar beauty" and "its peculiar merit." Stokes v. Co., 3 Leigh 318, 338; Harris v.Comm., 113 Va. 746. To preserve that merit, the courts were admonished to liberalize the common law "to the circumstances of the country so as to effect a reasonable and substantial, rather than a literal compliance with its principles." See 1 Tucker Com., 9. That admonition has been heeded in many decisions. See the brilliant article by Dr. T. Porter Hardman, "Stare Decisis and the Modern Trend," published in the W. Va. Law Quarterly, April, 1926. As early as 1806, Judge Roane (whom Thos. Jefferson desired to succeed John Marshall) observed that as time increased our severance from England, there would be "a correspondent variation in the rules of the common law." Baring v. Reeder, 1 H. M. 154, 162. As late as November of 1929, this Court also noted that variation. See Currence v.Ralphsnyder, 108 W. Va. 194. If this adaptability be disregarded by the courts, the common law will be deprived of that merit which has led to its expansion. It will then become immobile in the rigidity of its own precedents.
It was ordained by the Thurians that whosoever proposed either to abolish old laws or to establish new, should present himself to the people with a halter about his neck; to the end *Page 570 that if his proposition should not be approved, he might immediately be hanged. It followed that the Thurians were not noted either for their progress or their lawgivers. A collar of precedents may stifle legal expansion as effectually as the Thurian halter. Veneration of precedent, alone, has little utility. That veneration becomes vital when it uses precedent to illuminate the present. Uniformity in decisions is imperative where the circumstances are similar. But that uniformity does not require making a fetish of precedent. Reason, not precedent, is the inspiration of the common law. Courts should be conservative. But that quality need not block progression. Courts must not lag when civilization marches.