majority">

By the Oourt

— Emmett, C. J.

This case simply- involves the construction of Sec. 73 of Chap. 119 of the Statutes of 1851, which is in the words following:

*442“Sec. 73. Where the offence involves the commission of or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

We regard this section rather as declaratory of the old law, than as establishing a new rule on the subject, and as applying only to cases where an injury to a private person, or an intent to injure or defraud some private person or body corporate is involved in the description of the offence, and which it becomes therefore necessary to allege, unless otherwise provided by statute, but not material to be proved as alleged. To such crimes for example as willfully casting away, burning, sinking or otherwise destroying any ship, boat or vessel, with intent to injure or defraud the owner, or insurer thereof, or of any property on board, {Sec. 35, Chap. 101, Stat. 1851;) so also the lading, equipping or fitting out of such boat or vessel, with intent thus to destroy it, to the injury of such owner or insurer, {Ibid. Sec. 86;) the making out of false invoices of cargoes by ship owners, or of false affidavits, or protests with the like intent, {/bid. Sec. 37, 38,) and most crimes involving the malicious injury or destruction of private property; so also the crimes of forgery and uttering forged records, certificates of officers, notes, bills, bonds, deeds, &c., with intent to injure or defraud a/ny person. Ibid. Sec. 1, 2 and 3, Ohap. 102. In all these and in many other offences not necessary to enumerate here, it will be seen that the statute makes the injury to, or the intent to injure or defraud some person a part of the description of, and an ingredient necessary to constitute the offence. In every such case therefore, the indictment must name the person or body corporate injured or intended .to be inj ured, except when the statute expressly dispenses with the allegation. It was not however, even before the passage of our statute, necessary to prove the injury, or the intent to injure or defraud, exactly as alleged in the indictment, for if the crime were committed with a malicious or felonious intent, it mattered very little who was the particular person injured, or intended to be injured. The willful *443destruction of a vessel, or the felonious forgery or uttering of a note or bill is the real gist of the offence, whether A or B was injured thereby, or whichsoever the criminal intended should suffer by his act. The crime would be described with certainty sufficient to identify the act without reference to the particular person injured or intended to be injured. That at a certain time and place the Defendant willfully and feloniously burned a certain vessel, or forged and counterfeited a certain note or bill of exchange, is all that is really important, and all that the State is interested in ascertaing and punishing. Whenever these facts are proven the gravamen of the offence charged is established, and it is really of little importance who may prove to be the person injured or intended to be injured. An erroneous allegation therefore in this respect is not material, and our statute but declares what has long-been recognized as the rule on the subject.

This view is greatly strengthened by an examination of the chapter in which this section occurs, where it will be found that of the twenty or more sections composing the chapter, two thirds at least are used to state rules and propositions perfectly familiar to every criminal lawyer, and even where, in the remaining sections, there is a departure from an established rule, it is not a radical change, but rather a modification, in conformity with modern decisions, so that indeed almost the whole chapter may, to a certain degree, be considered as declaratory only.

The learned Judge, in the belief, as we [gather from his opinion, that the section under consideration was designed to meet and overcome some difficulty in the administration of criminal law, gave it too extended an application. The term “private injury” must not be confounded with “personal injury,” for although every injury to the person is in one sense a private injury,yet in our opinion the term is not used in this section, in so general a sense, but is limited and applicable only to injuries to^private property, or such as are distinguishable from injuries to 'the person, f If the section is to receive the construction given in the Court below, and the term private injury is not limited as above, but extends to and *444includes all inj uries to the person, then it would apply, if not to almost every crime known to the law, certainly to all offences against tlie lives and property of individuals, from murder down to simple assault, because they all involve an injury to the p'erson, and hence a private injury. And if the section is applicable to such cases, it follows that not only an erroneous allegation as to the person assaulted or beaten, hut even as to the person robbed or maimed, or ravished or murdered is immaterial, if only it be proven that the crime charged was committed against somebody. This would enable tlie State to convict a person charged witb tbe murder or robbery of A by proof that he committed the offence as against B. Such a state of affairs could not be tolerated, and we cannot believe that the Legislature ever intended so dangerous a departure from correct and established principles.

In this case the charge could be sustained only by proof that the assault was committed by the Defendant upon the person named in the indictment. The refusal of the Judge so to charge, and his charge to the jury that it was sufficient for them to “find that the assault laid in the indictment, or a mere assault was committed upon either Morton or Toleton, by Defendant,” was erroneous, and a new trial must be awarded.

Citation profile

How this case has been treated — in progress