Opinion
No. 32464.
February 1, 1937.
1. THREATS.
Under statute making it an offense for one to knowingly part with possession of letter threatening to accuse any person of a crime or to do any injury to the person or property of anyone, with view or intent to extort or gain money or property, indictment charging that defendant wrote instrument informing addressee to leave house and place money under front doorstep, and not to return until certain time, and stating that addressee would be watched from time she left home until she returned, held defective, since it failed to charge that defendant parted with writing and writing did not contain threat (Code 1930, sec. 1129).
2. INDICTMENT AND INFORMATION.
Indictment charging statutory offense need not use exact language of statute, its equivalent being sufficient.
APPEAL from the circuit court of Grenada county. HON. JOHN F. ALLEN, Judge.
S.C. Mims, Jr., of Grenada, for appellant.
The indictment was an attempt to charge an offense described under section 1129 of the 1930 Code. The demurrer raised the point that the letter or writing incorporated in the indictment and the basis of the same on its face was not such a letter or writing as denounced in the section supra. The letter or writing to come within the provisions of the section must threaten to accuse the proposed recipient of a crime, or to do injury to the person or property of the same. The letter incorporated in the indictment did neither. Nor did the indictment contain any such allegation in the language of the statute or the equivalent thereof.
State v. Traylor, 100 Miss. 544, 56 So. 521; State v. Hinton, 139 Miss. 513, 104 So. 354.
In framing indictment for statutory offenses, it is essential that either the same words or equivalent in meaning be used in charging an offense.
Harrington v. State, 54 Miss. 490; Roberts v. State, 55 Miss. 421; Richberger v. State, 90 Miss. 806; State v. Presley, 91 Miss. 377.
The indictment in question does not charge in any way or manner that the letter or writing was sent or delivered by the appellant or Sam Brannigan; nor does it charge that the possession of the same was parted with by either of the defendants named in the indictment. Without these essential allegations no crime was charged against the defendants.
Dees v. State, 117 So. 369.
Webb M. Mize, Assistant Attorney-General, for the state.
The indictment set out the necessary averments required by the statute and where the language of the statute, or its equivalent in meaning and effect is asserted, the offense is sufficiently charged.
State v. Hinton, 139 Miss. 513, 104 So. 354; Richberger v. State, 90 Miss. 806, 44 So. 772.
The formal and technical words of the statute are dispensable in an indictment. If the offense charged is certainly and substantially described in language equivalent in meaning to the language of the statute, it is sufficient.
Snowden v. State, 164 Miss. 613, 145 So. 622; Wexler v. State, 167 Miss. 464, 142 So. 501.
Appellant also says in his brief that the indictment did not charge that the letter or writing was sent or delivered by the appellant or Sam Brannigan and that the indictment does not charge that the possession of same was parted with by either of the defendants named in the indictment. This objection is raised in the Supreme Court for the first time and was not incorporated in the demurrer that was filed.
Stewart v. State, 151 Miss. 649, 118 So. 826; Sullivan v. State, 150 Miss. 542, 117 So. 374; Neilsen v. State, 149 Miss. 223, 115 So. 429.
Appellant was indicted, tried, and convicted in the circuit court of Grenada county of the character of robbery as defined by section 1129, Code of 1930. He was sentenced to the penitentiary for a term of five years. From that judgment he prosecutes this appeal.
The indictment was demurred to on the ground that it charged no offense under the statute. The demurrer was overruled. That action of the court is the only ground relied on for a reversal. The statute is in this language: "Robbery — threatening letter demanding money, property. — Every person who shall knowingly send or deliver, or shall make, and, for the purpose of being sent or delivered, shall part with the possession of any letter or writing with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark, or other designation, threatening therein to accuse any person of a crime or to do any injury to the person or property of any one, with a view or intent to extort or gain money or property of any description belonging to another, shall be guilty of an attempt to rob, and shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five years."
It will be observed that two of the essential elements of the offense are (1) parting with the possession of the writing, and (2) "threatening therein to accuse any person of a crime or to do any injury to the person or property of any one."
The parts of the indictment for consideration are as follows: ". . . did then and there unlawfully, wilfully, feloniously and knowingly make and write a certain instrument of writing addressed and intended to be delivered to Henrietta Moore and then and there by the terms of said writing the same bore no signature and which said writing is in the following words and figures, to-wit: `Henryetta: This is what you are to do on the night of March 31st which is Tuesday. Read this letter very carefully, so there will be no mistakes made. At 8:30 o'clock, you leave your house, and place this money, which is $150.00, under your front door step, and don't return until after 10:30 o'clock. Remember you will be watched from the time you leave home until you return but if you do as you are told there is nothing to be afraid of, and nothing more will be said about it. Before you put this money under your steps be sure it is in a box or bucket. And remember the time from 8:30 P.M. to 10:30 P.M. No one is supposed to be at your house.'"
The indictment is defective in both of those essentials. It does not charge that appellant parted with the writing, and the letter itself contains no threat to accuse any one of a crime or to do any injury to the person or property of any one. The nearest to a threat in the letter is the statement that the person to whom it was addressed would be watched from the time she left her home until she returned, but if she would do as told there was nothing to be afraid of and nothing more would be said about it. That falls short. It is true it was not necessary to use the exact language of the statute in the indictment — its equivalent is sufficient. State v. Hinton, 139 Miss. 513, 104 So. 354; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Snowden, 164 Miss. 613, 145 So. 622; Wexler v. State, 167 Miss. 464, 142 So. 501. The trouble is the indictment uses neither the language of the statute nor its equivalent. If the language of the statute is not used, its equivalent must be. The definition in the statute must be the only necessary inference from the language used.
Reversed and remanded.