
    William H. Lasure v. The State of Ohio.
    1. Where, on an indictment for grand larceny presented against Henry Lasure, a person was arraigned, and pleaded in abatement that his name is not Henry Lasure, but William H. Lasure, and the plea was found to be true, and the name thus disclosed was entered on the minutes of the court, and the trial and further proceedings were had in pursuance of sec. 112 of the Code of Criminal Procedure, hdd — That this section of the Code is not in contravention of sec. 10 of art. 1 of the constitution of this State, providing that, except in cases therein specified, “ no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury.”
    2. Where, in case of larceny of property charged in the indictment to belong to one B., it appeared in evidence that only a part of the several articles of property stolen belonged to B., and that the other part belonged to said B. and one O. as partners, it was not error for the court to charge the jury that they might, under the indictment, find the accused guilty, as well of the larceny of the articles belonging to B. and O. as of the articles belonging to B. alone, and might include both in ascertaining the value of the property. Section 97 of the Code of Oriminal Procedure changes the common-law rule on this subject.
    Error to tbe court of common pleas of Van' Wert county.
    At the September term, 1869, the grand jury presented an indictment against Henry Lasure for stealing one five-dollar United States legal-tender note, three five-dollar National Bank notes, three ten-dollar National Bank notes, one one-dollar National Bank note, one one-dollar United States legal-tender note, — the property of Patrióle Pecknan.
    
    At that term William II. Lasure, being arraigned upon that indictment, filed thereto a plea in abatement as follows “ And now comes William H. Lasure, who is indicted by the name of Henry Lasure, and for his plea in abatement says, having heard said indictment read, that his own proper name is William II. Lasure and not Henry Lasure, as by said indictment is supposed, and this he the said William II. Lasure is ready to verify; ” and prays that he may be discharged, etc. This plea was found to be true, and the court entered the name thus disclosed upon the minutes of the court, as the true name of the accused, and directed that the further procéedings in the case be against “William II. Lasure, who is indicted by the name of Henry Lasure.” The defendant excepted.
    Afterward, that day, William H. Lasure being before the court and asked to further plead to the indictment, entered his plea of not guilty, and the court set the case for trial at the adjourned term in December. The trial was then had, and resulted in a verdict of guilty as charged in the indictment, and finding the value of .the property to be fifty-two dollars.
    The defendant moved for a new trial, and to set aside the verdict, on the grounds —
    1st. That the verdict is not sustained by sufficient evidence.
    2d. That the verdict is contrary to law.
    3d. That the court erred in the charge to the jury.
    4th. The verdict was for the State, instead of for the ' defendant.
    This motion was overruled, and exception taken; and the defendant was sentenced to the penitentiary for five years, and to pay the costs.
    It appears from the bill of exceptions that, to maintain thé issue on its part as to the ownership of the property, the State offered Patrick Redman as a witness, who testified that the three ten-dollar bills, specified in the indictment were his property, and that the remaining amount of the bills named in the indictment was the property of the witness Redman and one Olinehouse, his partner. Thereupon the defendant asked the court to charge the jury, that if they found that a part of the property was the property of Red-man and his partner Olinehouse, the jury, in arriving at the value of the property, could only assess the value of the property proved to be the property of Redman alone; and that proof that a portion of the bills described in the indictment, to wit: four five-dollar bills and two one-dollar bills, were the property of Redman cmd Olinehouse, would not sustain the allegation in the indictment that it was the property of Redman alone. The court refused to give this charge, Tut did charge the jury, that, if they found, from the evidence, that the five-dollar bills and the two one-dollar bills were the property of Redman cmd Olinehouse, his partner, they were well laid in the indictment as the property of Redman; and that, in finding the value of the property stolen (if they found the fact to be so), they might include said notes in the value of the property so stolen, as well as the three ten-dollar bills.
    
      The defendant excepted; and now, under his assignment of errors, presents the following questions:
    1. Did not the court below err in proceeding, after the plea in abatement for misnomer was found to be true, to try the defendant on the indictment against Henry Lasure ?
    2. Did not the court below err in refusing to instruct the jury, as requested by the defendant, in regard to finding the ownership and value of the property alleged to have been stolen, and in charging as it did?
    
      L. J. Critchfield and J. M. Barr, for plaintiff in error:
    1. The court below erred in proceeding, after finding the plea in abatement for misnomer to be true, to try the defendant on the indictment against Henry Lasure.
    To thus proceed was, as is claimed, in accordance with and justified by sec. 112 of the Criminal Code (66 O. L. 304). But was it not, at the same time, requiring the defendant to answer for an “ infamous crime ” without having been presented or indicted by a grand jury, and, therefore, in contravention of sec. 10, art. 1 of the constitution of Ohio ?
    Before the Criminal Code, when a plea of misnomer was put in, the prosecutor could — (1) Re-in diet the defendant by the new name which he gave as his true name, and push the old bill no further. 1 Am. Or. Law, § 537; Hale’s P. C. 176, 238 ; (2) Deny the plea if it was not true; (3) Reply that the defendant was known as well by the one name as the other; (4) Demur to the plea. I$ut in no case could the defendant be tried upon the original indictment, after his plea of misnomer was found to be true.
    It will not do very well to say that an indictment is against an individual as a person, and that his particular name is immaterial. In legal proceedings persons are known only by their names. It may be that not a single grand juror has any knowledge whatever of a person accused, except as he is described to them by name. Take the present case. It may be that not one of the grand jurors personally knew a man called Lasure, and accused of larceny. All they could go by was evidence that & person called Henry Lasure coni.mitted the crime. And, as the prosecuting attorney did not reply to the plea in abatement of William H. Lasure, that he was known as well by the name of Henry as by that of William, it would seem that the man William was not known by the name of Henry, and that the grand jury not only had no proof, but could have none, that William H. Lasure was guilty of the larceny for which Henry Lasure was indicted. The grand jury did not indict William. Will the constitution allow the legislature to authorize the court, by order, to do it, or to require him to answer to an indictment against another ?
    
    2. The bill of exceptions shows that, of the $52 in bills alleged in the indictment to have been the property of Patrick Redman, only $30 were in fact his property — the three ten-dollar bills; and. that the other $22 in bills were the property, not of Patrick Redman, but of Redman & Cline-house, partners. The court was requested by Lasure to instru'ct the jury that, in fixing the value of the property under the indictment, charging it to belong to Redman alone, they could not include the $22 belonging to Redman & Olinehouse. The court refused so to instruct the jury, but did allow them to add to the $30 belonging to Redman alone the $22 belonging to Redman & Clinehouse. In this, we submit, the court erred. That it would have been error, under the law as it stood before the Criminal Code, sec. 97 (66 O. L. 302), cannot be doubted. And we think that section will not sustain the action of the court.
    Sec. 97 of the Criminal Code reads as follows: “When any offence shall be committed upon, or in relation to any property belonging to several partners or owners, the indictment for such offence shall be deemed sufficient, if it allege such property belonged to any one or more of such partners or owners, without naming all of them.
    As throwing light upon this section of the statute, and as aiding in its construction, the attention of the court is called to section 1 of the act of March 24, 1864 (S. & S. 269), repealed by the Criminal Code (66 O. L. 324). That section 1 reads as follows: “ That in any indictment or information for any offence or crime wherein it shall be requisite to state the ownership of any property whatsoever, whether real or personal, which shall belong to, or be im the possession of more than one person, whether such person be partner in trade, joint tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named and another of others, as the case may be; and whenever, in any indictment or information for any offence or crime, it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them i/n the manner aforesaid; and this provision shall be construed to extend to all joint-stock companies and trustees.”
    As to the rule of construction of a statute when revised, see Dutoit v. Doyle et al., 16 Ohio St. 405.
    The Criminal Code is a general revision of the several acts regulating the practice in criminal cases before the code.
    Upon a comparison of sec. 97 of the Criminal Code, and sec. 1 of the act of 1864, is it not evident that the revising section requires the same construction that the section revised would1 require? The two sections were intended to provide for the sarnie class of cases, to wit: for offences against property belonging to “severalpartners or owners /” and neither section was intended to apply to offences against property belonging to one person alone, such offences being left to the ordinary rule as to the mode of stating ownership in the indictment.
    
      Ownership is, in larceny, as much an issuable fact as the taking or the value.
    It is submitted, therefore, that under the indictment in question, charging the property to belong to Patrich Red-mam, the jury could not find Lasure guilty of stealing property belonging to Redman and Glimehouse,partners, and that the court erred in allowing the jury, in assessing the value of the property alleged to have been stolen, to add to the $30, which was all that did belong to Patríele Redman, the $22 that was proved to belong to Pedman <& Olinehouse, partners.
    
    
      F. B. Pond, attorney-general, for the State :
    1. The accused was properly pnt upon his trial after the plea in abatement was found in bis favor. Crim. Code, secs. 106-112, vol. 66, O. L. 304.
    2. Tbe court did not err in its charge, as to the ownership of tbe property. It appears, substantially, that but one larceny -was committed. Tbe $30 proven to be Redman’s was well laid as bis. And, under the 91th section of tbe Criminal Code, tbe partnership property was well laid as Red-man’s, one of tbe partners. It is, therefore, all well laid as tbe property of Redman.
   Bbinkebhoff, O.J.

We are of opinion that tbe court below did not err in tbe determination of either of tbe questions above mentioned.

Under tbe common-law system of criminal procedure' which we inherited from England, when a person indicted put in a plea in abatement on the ground of misnomer, and. such plea was found to be. true, tbe result was that be must either be discharged, or proceeding^ against him for tbe alleged crime by tbe name disclosed in bis plea must be begun de novo. To avoid tbe delay and inconvenience of this roundabout method of proceeding, our recently enacted Code of Criminal Procedure, 66 O. L. 304, sec. 112, wisely following in tbe wake of recent legislation by tbe British Parliament for tbe attainment of similar ends, provides — “If tbe accused shall plead in'* abatement that be is not indicted by bis true name, be must plead what bis true name is, which shall be entered on tbe minutes of tbe court; and after such entry, tbe trial and all other proceedings on tbe indictment shall be bad against him by that name, referring also to the name by which be is indicted, in tbe same manner in all respects as if he bad been indicted by bis true name.” In tbe case before us, these provisions of tbe Code of Criminal Procedure were, in tbe court below, strictly conformed to; and the record shows that in all proceedings against the accused bad and taken subsequent to the ruling of the court upon the plea in abatement, he is designated as “ William H. Lasure, who is indicted by the name of Henry Lasure.” As to this, the counsel for the plaintiff in error make no question.

But it is urged in his behalf — and here is the only serious question in the case, as we think- — -that the provisions of the section of the Code of Criminal Procedure above quoted are in contravention of the clause of article 1, section 10, of the constitution of this State, which provides, that, except ^ in cases of impeachment, and cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and in cases of petit larceny and other inferior offences, no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment oM indictment of a grand jury?

Now, it is urged that in law and in fact the plaintiff in error was held to answer' and tried on an indictment not found against him by a grand jury — the indictment found .and presented by the grand jury being against Henry La-.sure, when he in fact was tried, convicted, and sentenced as William H. Lasure.

The argument at first blush certainly appears not without r.plausibility; and it leads us to inquire what is an indictment %

Blackstone (vol iv., marginal paging 302) thus defines it: •“ An indictment is a written accusation of one or morej?^.sons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury.” An indictment, then, is an .accusation of a person of crime. It is an accusation against a person, and not against a name. A name is not of the substance of an indictment. And a person may be well indicted, without the mention of any name, and designating him as a person whose name is to the grand jurors unknown. ■Or a person may be indicted by a name wholly imaginary ¡and fictitious, as John Doe or Richard Roe; and, unless he interpose the plea of misnomer in abatement, by such name he may be tried, convicted, and sent to the penitentiary.

By the plea in abatement filed in this case — and which is, in form and substance, the ordinary plea of misnomer — the accused does not deny that he is the person accused of the crime named in the indictment. In effect he admits that he is that person. He thereby raises no question in respect to whether he is, or is not, the person accused in the indictment of the crime therein charged, nor does the finding of the truth of that plea determine any such question. The plea, and the finding thereon, relate only to the name, as a matter of personal description.

True, a person accused of crime and indicted by a wrong name, had, and has, alike under the former and under the present system of criminal procedure, the right to plead the misnomer and disclose his true name; and for this sole reason — in order that, in case of a subsequent prosecution for the same crime, he may have the benefit of the record of the first prosecution in support of a plea of former acquittal or conviction. This important right of the accused is as well protected under the Code of Criminal Procedure as it was at common law; every safeguard of the innocent is preserved in its integrity, while the speedy condemnation and punishment of the guilty is — as it ought to be — facilitated. But, it may be asked, suppose the indictment is against John Doe, and there are two John Does; and the wrong one is arrested and held in custody. Or suppose the sheriff mistakes the person and arrests Richard Roe, and holds him in custody instead of John Doe; — what then? I answer, he has at least two remedies, and may avail himself of either. He may to the indictment plead not guilty, and go to trial on that plea, under which the State must prove that he — not a name — is guilty of the criminal act charged; or, he may avail himself of the benefit of a writ of habeas corpxis, and, on a satisfactory showing, procure his immediate release, as being illegally held in custody.

And now, as to the second question made in the case. It is this in substance. The indictment charging the larceny of the property of Redman only, was it sufficient to warrant a conviction to prove the larceny of the property of the said Redman and one Clinesmith as partners ? This question seems to us to be answered by the 97th section of the Code of Criminal Procedure (66 O. L. 302), which provides, that “ when any offence shall be committed upon, or in relation to any property belonging to several partners or owners, the indictment for such offence shall be deemed sufficient if it allege such property belonged to any one or more of such partners or owners, without naming all of them.”

This legislation is express. “ It shall be sufficient to allege” certain facts. If it be sufficient to allege them, surely it must be sufficient to prove them as alleged. It was competent- for the legislature thus to enact; nor is it claimed that there is anything- in the constitution of the State to prohibit it. Even at common law it was sufficient, where property was alleged to be that of a person named, to prove, as against a wrongdoer, that he had simply a right of possession — as bailee, for instance. And it would be entirely within legislative competence, we think, to enact that it should be sufficient, in order to constitute larceny, to allege and prove the felonious stealing of the property of another, without naming any person whomsoever to be the owner. This is not controverted in argument.

But it is urged in argument that this provision of the Code of Criminal Procedure is but a revision of prior statutory provisions on the same subject, and that it is an established rule in the interpretation of statutes, that, in such case, “ neither an alteration of phraseology, nor the omission or addition of words in the later statute, shall be held necessarily to alter the construction of the former act. And the court is only warranted in holding the construction of a statute, when revised, to be changed when the intent of the legislature to make such change is clear,” etc.; and cites Dutoit v. Doyle, 16 Ohio St. 405. Now, we admit the rule as stated to be a correct and established one; but we cannot admit the assumption on the ground of which it is sought to be made applicable to this provision of the Code of Criminal Procedure. The Code of Criminal Procedure is not, nor was it intended to be, a revision of tbe law, whether common or statutory, on the subjects embraced by it. On the contrary, whether we give it a cursory reading or a careful examination, it is apparent that it was intended to introduce a change, amounting almost to a revolution, of our system of practice and procedure in criminal cases ; and it is not difficult to trace the outlines of the history of this radical change, and of the reasons which dictated its adoption.

1 have said that, up to the time of the enactment of the Code of Criminal Procedure, our system of practice and procedure in criminal cases was inherited, substantially, from England. During the period within which this system was in the process of formation by the accumulation of successive precedents, the English code of criminal punishments was barbarous and bloody; so that when Blackstone wrote Iris Commentaries — but little more than a century ago — no less than one hundred and sixty different crimes stood defined on the statute books of the Parliament of England, in full force, and each and all, on conviction, incurring the penalty of death. 4 Bl. Com. 18. From the consequences of such laws, the humane instincts and principles of the wise and good men, in the main, who occupied the English bench revolted, and led them, in the trial of persons accused of felony, to seize upon every technical quibble, every point of an artificial logic, and every-appearance of irregularity of proceeding having the semblance of plausibility, to secure the acquittal of persons accused, and so to prevent the infliction of punishment excessively severe. And so, step by step, and atom by atom, was our old common-law system of criminal procedure built up and established — a system so honeycombed with loopholes of escape for the criminal, as to excite the disgust of the reflecting lawyer, and the wonder of intelligent laymen. Then came an era in which it was proclaimed and believed, that, for the prevention and repression of crime, speedy conviction and certainty of punishment were more effective and valuable to society than severity of punishment. . Under the influence of this rational doctrine, the number of capital crimes was by legislation pruned down, the severity of penalties was mitigated, and the amount of penalty, in the main, reasonably well graduated in conformity to the magnitude of the crime committed. Then followed a long period during which, though punishments had been mitigated and reduced to a humane and just measure, nothing at all, or next to nothing, was done to ensure speedy and certain punishment of actual guilt. Finally Lord Campbell’s act, so called (14 and 15 Yict. C. 100), passed the British Parliament, by which (in the language of Mr. Archbold) the whole mass of little points and legal subtleties in indictable cases were swept away,” so that criminal trials would thereafter be conducted upon the merits, and the merits alone; and a system of criminal procedure was introduced, under which, while every safeguard of the innocent was carefully preserved, the speedy and certain conviction and punishment of the guilty was facilitated and promoted. It is evident' that the provisions of our Code of Criminal Procedure were largely borrowed from Lord Campbell’s act; that it aims at similar ends through similar means, and is animated by a similar policy. That it is defective and unwise in some of its provisions, inviting legislative amendment, is not unlikely. It would be strange if it were not so. But I believe it to be a step, and a long step, in the right direction; and while it remains as the authoritative expression of the will of the legislative body of the State, it will be the duty of the judiciary to administer and enforce it in the spirit in which it was conceived, and in furtherance of the policy it was intended to introduce.

We find no error in the record and proceedings of the •court below, and the judgment is affirmed.

Scott, Welch, White, and Day, JJ., concurred.  