Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-30

notes on the ground that the indict-
ment states that "a more particular
description of any of which promis-
sorry notes is to the Grand Jury un-
known" whereas, according to the
claim of the defendant it appeared
from the evidence that the grand jury
could readily have ascertained a more
particular description Of the notes.
During the course of the trial the
state gave evidence in chief tending
to show not only the amounts of the
notes mentioned in the indictment,
but also the names of the makers, and
these names not having been men
| toned in the indictment gave rise to
this objection of the defendant 1t is
by no means certain from an ex-
animation of the record that the grand
jury had sufficient knowledge to say
on their oaths at the time of return
ing the indictment that they could
give a better description. 1t is true
that more detailed description could
have been given If the notes had been
before thin. They might have gone
so far as to set out copy of the
notes, to give the color of the paper,
etc, but there is not sufficient in the
testimony to authorize the court to-
presume that the grand jury either
purposely or negligently made an un-
true statement when they said in the
indictment that they could not give a
more particular description of the
notes. The reason of the rule allow
ing such pleading is found in the fact
that sometimes the leading features
of a crime can be established while
some detail, such as a name or par
ticular description of an object or
property cannot be given, and justice
would fail if, under such circum-
stances, a violator of the law was al
lowed to escape. But when the rea-
son of the rule fails the rule also fails.
"Promissory note" by that name is
made a subject Of larceny under our
code. L. o. L., Sec. 1947. We have
no common law crimes in this state
Estate V. Vowels, Or. S24) and 1t has
been often held that it is sufficient in
charging a statutory crime to use the
words of the statute defining the Of
fense. 1t is sufficient in charging
larceny of property to use the statu-
tory name, without further detailed
description. Commonwealth V. Bret
tun, 100 Mass 206; Dignowitty v.
State, II Tex. 521. On describing the
notes mentioned in the indictment the
grand jury went further than re-
quired by the statute and alleged
more than was necessary in giving
the amount of each one. 1t was not
requisite or necessary to say that
they could not give more particular
description and that allegation may be
disregarded as surplusage. Whar. Or
Pl. 18th Ed Sec. 1853. Still further
it does not appear in any way that
the defendant was misled or preju'
diced by the failure Of the state tC
give a more particular description Of
the notes mentioned in the indictment
; But the court, as disclosed by the
record, in order more fully to protect
the rights of the defendant Offered
to declare an adjournment for rea'
sonable length of time to enable hin
properly to prepare and present his
defense against the charge of EN-
bezzling the notes, but no advantage
was taken Of this offer. Hence 1t can
not be said in reason that the de-
fendant's rights were abused in that
regard.
AS a witness in his own behalf IN
his direct examination the defendant
gave evidence explaining about cash
entries on the books and other affairs
of the bank. On cross examination
the prosecution exhibited to him
copy of newspaper Of September 8
I 1906, containing an advertisement o.
the condition of the bank at the close
of business September 4, 1906, ap
/ parently verified by the affidavit o.
the defendant. The defendant said II
his testimony: "That is a copy of {
I statement that we got out at tina
time, if that is what you want" HI
! further testified that such statements
were generally gotten up by th'
: bookkeeper or assistant cashier; tina
! the defendant approved this one; tina
his name was probably signed to /
on a typewriter by the stenographer
} that it was gotten up just to publisl
and was published with his approval
and that he had charge of the adver
; tising. The defendants counsel OBJ
iected to the reception Of the state
fment in evidence bcause 1t was no
proper cross examination; that 1t wa
! immaterial; and that the origina
! paper prepared by the stenographe
I was the best evidence. BY his testi
! mony the defendant in effect admit
! that he was the producing cause o
I the advertisement. He thus make
! the nrinting of that advertisement hi