Delaware gazette and state journal., 1884-02-14

clients limited knowledge Of the Euglish
language, he could not get him to under.
stand the matter, and he refused to enter
The plea for fear he would be sent to ! all
for IL years. The court suggested that
an interperetor should be procured, and
Mr.. Johnson stated that he summoned
one who hal been in the court room
during part of the session but had gone
away, under the supposition that he
| would not be needed. The case was
then passed for the time being, and it is
probable will continued until next term.
Thomas Purnell, colored, who pleaded
guilty to an indictment charging him
with the larceny of wagon, aud to
another charging him with the larceny
Of mare, both the property of Samuel
Townsend of Appaquinimink hundred,
was sentenced In the first case to pay the
costs of prosecution, $l25 restitution
money, on Saturday receive 10 lsshes,
and be imprisoned three months. On
the second indictment he was sentence d
to pay the costs of prosecution, $3.50
restitution money, on Saturday stand one
hour in the pillofy, receive 20 lsshes aud
be imprisoned three months.
Henry Wilmer, colored, who pleaded
| guilty to the larceny of pair of shoes from
David Shockley, WAS sentenced to pay
the costs OF prosecution, 90 restitution
money, on Saturday receive 10 lashes,
and be imprisoned three months.
The motion made by Ignstius C. Grubb,
Esq, at the last term Of court TO qussh
the indictment found against George
3. Hagsny, Jr., alias "Slim Jim." under
the professional thief act was granted,
and his discharge ordered.
AS soon as he was released by the
sheriff, he was arrested on a warrant by
Chief Hawkins, for being concerned in
burglary committed at Kennard's store
| some time ago.
The jurors, with the exception OF those
| engaged in the second suit against the
| railroad company, were discharged from
| further attendance, and at 5 so o'clock
| court adjourned until Saturday morning.
Shortly after court opened Saturday
morning Chief Justice Comegys delivered
the opinion OF the court on the constitu-
tionality Of the professional thief act as
| follows:
This is a motion to quash on the ground
that there are no facts alleged to establish
| larcenous acts or conduct, and therefore the
| defendant has not by the indictment the i'll
| formation required by the seventh section of
| the first article of the constitution.
No such offense as that OF being common
thief exists at the common law. ln tins State
| it was made one by a statute passed on the
| 18th day Of April last. There is no question
| of the power OF the Legislature to make the
| being common thief an indictable offense
| and to provide for its punishment. The
| statute is admitted with qualification, to be
constitutional exercise of legislative power.
| But the defendants counsel insists that not
| wlthstanding this, the Indictment is INSULT
cient in not pointing out specifically the acts
| Of thievery or larceny that make the pri-
soner a common thief.
As the charge on which conviction is asked
is not that of specific larceny which is felony,
but of being commonlarcen or or thief, which
il but a misdomeanor, the offense Is really
that Of being addicted to acts of larceny Now
it Ii obvious that such addictedness needs to
be shown by proof of repeated lsrcenous
| acts. One or two only will not suffice; there
must be enough more to SHOW succession OF
acts establishing course of behaviour or ex-
listing habit or practice The act it is true
provides that the necessary proof may be Of
reputation only. 1t i5 now, however, insisted
here that the charge In the indictment could
be sustained by such proof. 1t is conceded
that acts Of larceny must be shown. The
counsel on both sides are then at one, 30 far
AZ requirements of sufficient proof is con-
cerned.
Although the indictment, as found, is
warranted by the statute IN question, and fol-
lows the authority given by it, yet the pris-
oner's COUNSEL contends that 1t is, neverthe
| less, defective, and should be quashed,
because no specific acts Of larceny to make
| the prisoner common thief, are given , and
| that the attempt in this case, by the Legis-
lature to designate what shall be sufficient to
| be stated Ill all indictment for being a COM
Df
the section and article above referred to.
| That section is i'll Il ese words:
| "Article /, section I'm all criminal prose-
cutions the accused hath right to be heard
| by himself and his counsel, to be fully in
| formed of the nature and cause of the accu-
| satlon against him, to meet the illnesses iii
their examination face to face, to have COM
| pulsory process Ill due time, on application
| by himself, his friends or counsel, for obtain
| ing witnesses in his favor, and especially II
public trial by an impartial jury
The question then Is can the Legislature
| provide by law what shall be sufficient
| statement of ali offense i'll All indictment The
| answer to it is that they can, provided they do
| not violate the section quoted. Should they
| do 30, their act would be void. Was there
| such violation in the case before us This
| question must be answered in the affirmative
| the first sesction OF the act declaring that
| sit shall be necessary to charge in all lndict-
l
thief" This calls for all Interpretation of
| the above recited section of the first article
| OF the constitution.
| There is no doubt the section in question,
as well as its predecessor (Art. of the amend
ments OF the Constitution of the United
| States) was made to establish permanently
| the common law rule with respect to indict-
ments-that everything necessary to inform a
| party.of the charge alleged against him should
| be set forth i'll them.; as time, place. circum-
| stances, &c. The reason of the common law
requirement il sufficiently obvious. 1t
| would be, indeed, grievous wrong il one
| could be held to answer upon u
general criminal charge the commits
sion of crime where no facts
were set forth that went to make it, II is OF
the essence of indictments that they shall set
forth everything necessary to make the
| otfense imputed; and this with certainty of
| time place and circumstance, 10 the end that
| the defendant may know what accusations he
is to meet This ID familiar law, common
law; and speaking generally always has been
| the law for English people and their de-
| cendants.
II the offense against which the act OF
| Assembly in question was passed were com
| mon law crime, we should be governed i'll our
| decision by common law practice in prose-
cutting for it. But there is no CRIME or mis-
demeanor at common law of being common
| thief.
There are, believe, only two instances in
all common law jurisprudence of offenses
| where person can be prosecuted by indict-
ment for being a common offender of any
kind, and they are very ancient. One is that
| OF being common barrator or mover or pro-
moter of quarres, suits, Nc., and the other
| that of being Il common scOld. In neither Of
these is it indeed necessary to set forth any
particular facts that go to make up the
offense in the indictment. These cases, how
| ever, and that of keeping common bawdy
hous are exceptions to the general rule, as
appears by the remarks of Justice Butler and
Ashhurst in the case of j. Anson We.
stuart l, L. II. 74S; at least the first is stated
to be so by the former judge. The books
treat them as such. But III these cases the
prosecutor is bound TO furnish the person
charged with statement of the facts upon
which he intends 10 reply to establish his
charge. While therefore, those cases are
apparently absolute exceptions to the require.
ment oil defniteness OF statement i'll an in
dictment they are 30 qualified by only and
they furnish no warrant for the legislation OF
last session, nor for the Indictment
in pursuance of it. Even if the
act provided for furnishing party
charged with being common thief, with
the acts of larceny to be relied on to support
the charge should not be willing to say in
the face OF the section above quoted that
deemed it a constitutional exercise of legisla.
tive power In my opinion the rights of
accused persons would be unwarrantly evaded
il they were required to defend against in.
dictments Except at the utmost those re.
ferred toy making general charge with no
particulars.
believe the makers of the constitution
meant to provide against that, and they could
not have adopted better means to do 1t than