
    Commonwealth v. Clark.
    1849. December Term
    
    1. An indictment for an attempt to commit an offence, ought to allege some act done by the defendant, of such a nature as to constitute an attempt to commit the offence mentioned in the indictment.
    
    2. When an indictment does not charge a criminal offence, the Court may, upon the motion of the defendant, quash it.
    At the June term 1849. of the Circuit Court of Harrison county, Leonard Clark was indicted, for that he, on the 1st day of November 1848, “with a certain pistol then and there loaded with gunpowder and one leaden bullet, which he the said Leonard Clark in his right hand then and there held, then and there did attempt feloniously to maim, disfigure, disable and kill Cyrus Ross of the same county,&c.
    At the November term of the Court the defendant appeared by his attorney, and moved the Court to quash the indictment. Whereupon the Court, with the consent of the defendant, adjourned to this Court the following questions:
    
      1. Whether the said indictment, to be a good and valid indictment, should not allege an attempt to shoot, stab, cut or wound the said Cyrus Ross, or cause him some bodily harm ?
    2. Whether the said indictment should not allege an intent on the part of the defendant, (in the attempt made by him,) to maim, disfigure, disable or kill the said Cyrus Ross ?
    
    3. Whether the said indictment should not allege that the defendant did some act towards the commission of the offence, with the attempt to do which he is charged in said indictment ?
    4. What judgment the'Court should render upon the motion to quash the said indictment ?
    The case was argued in writing by William A. Harrison, for the Commonwealth, and by John S. Hoffman, for the defendant.
    For the Commonwealth.
    The attorney for the Commonwealth, who drafted this indictment, supposes that indictments founded upon our late act of assembly for punishing attempts to commit offences, may be good without setting out the special manner of the whole fact. The act punishes the attempt to commit. Acts done towards the commission of an offence, are so various, that they lie in proof, and not in averment. The indictment ought to charge the particular offence, and the attempt to commit that of-fence. Here the indictment charges that the defendant did attempt to maim, disfigure, disable and kill Cyrus Ross. Our statute, p. 123, Criminal Code, is a transcript from the statute of New York. That statute will be found in Wharton’s American Criminal Law, p. 562: And the mode of indicting under that statute, and like statutes of other States of the Union, is fully stated in the decisions referred to by Wharton, p. 80, 562, 563. Though forms may be found in the English Form books, of indictments for attempts to commit of-fences, slating the special manner of the whole fact, yet the American courts do not require the same particularity. In the case of the Commonwealth v. Daniels, 2 Va. Gas. 402, indicted for disturbing a religious congregation, the manner or mode of disturbance, or acts done to effect the disturbance, are not stated; yet yet the General court held that indictment good. The acts which did disturb, were matters of evidence for the jury ; and were not necessary to be incorporated in the indictment. Why then in this case is it necessary to state the acts of the party in his attempt to commit the felony charged.
    For the defendant.
    As the general question, what judgment ought to be given on the motion to quash the indictment, is adjourned for the decision of this Court, the sufficiency of the indictment may be argued, without reference to the specific questions adjourned. The objections to the indictment, however, which will now be made, are, with one addition, the same suggested by the particular questions adjourned.
    The offence intended to be charged by the indictment, exists by the combined effect of two sections of the act concerning crimes and punishments &c.; the one relative to unlawful shooting &c. with intent to maim &c. ; Sess. Acts 1847-8, p. 96, § 10; and the other relative to the attempting and doing of any act towards the commission of an offence. Id. p. 123, § 12. The indictmeut should, therefore, according to the familiar rules of criminal pleading, allege, under the provisions of the latter section, an attempt to commit, and in the attempt, the doing of some act towards the commission of such acts, in such manner and with such intent, as, by the provisions of the former section, constitute the offence created by it. The description should be made up of the various definitive terms of the two sections, interwoven according to the taste of the pleader, so as to bring the offence charged within the provisions of the two taken together; with the interpolation of such words as are necessary to ascertain the particular acts constituting the offence, and the manner of their perpetration. In all these requisites, it is submitted, this indictment is defective.
    First. It does not charge any attempt to “ shoot, stab or cut,” or do any of the acts specified in the statute as constituents of the offence.
    Secondly. It does not charge any “ intent” at all, with which any act was attempted to be done.
    Thirdly. It does not charge that any act constituting the offence supposed to have been attempted, was attempted to be done “unlawfully.”
    Fourthly, and principally. It does not charge that the defendant, “ in the attempt, did any act towards the commission of the offence” alleged to have been attempted.
    The indictment should, perhaps, also state whether the acts constituting the offence attempted, were attempted to be done “ maliciously” or “ not maliciously;” and that the defendant “ failed in the perpetration, or was intercepted or prevented in the execution of” the offence. But these allegations are probably not necessary, and will not be insisted on.
    By the first principles of criminal pleading, an indictment, whether for an offence at common law or by statute, must set forth every fact, with every incident necessary to constitute the offence; and when the offence is created by statute, it should do this in the very words of the statute. 1 Chitty’s Cr. Law 168-72. Id. 281-7, and cases cited infra. Thus, in the English courts, it has been held that the omission of the word “ ravished,” used in the statute, descriptive of the crime of rape, cannot be supplied by the use of any other words, however expressive of the force and carnal knowledge : that the omission of the word “wilfully,” in a charge of perjury, under a statute in which the word is used, is fatal: and that the word “ wilfully,” in the Black act, cannot he supplied by the use of the word “ maliciously,” one of stronger import. 1 Chitty’s Cr. Law 287. And when a statute used the words, “ horse, gelding or mare,” an indictment using the word “ colt,” was held bad. Rex v. Beaney, Russ. & Ryan 416.
    Prom these authorities, it would seem, not only technically proper, but absolutely necessary to describe a statutory offence, by the very language of the statute creating it; and that no paraphrase, however complete, would be sufficient. And such a doctrine, at least as applicable upon a motion to quash or on demurrer, has been strongly countenanced by our own Courts. In Howel v. The Commonwealth, 5 Gratt. 664, in which it was held that the words “set fire to,” in the indictment, would not supply the omission of the word “ bum,” used in the statute, upon which the prosecution was founded, Judge Lomax, delivering the opinion of the Court, said: “ The substitution of other words in the place of those used in the statute, cannot be too strongly discountenanced.” And in the case of Peas v. The Commonwealth, 2 Gratt. 629, the same Judge, after quoting, with apparent approbation, the rule laid down by Lord Mansfield, and the elementary writers, that the offence must be set forth in the words of the statute, says: we are not “ bound to search for cases” in which the acts charged in the indictment may exist, and yet there may be no offence within the statute. No room, it is supposed, should be left for such an enquiry. The possibility of such a case should be excluded, by the employment of the very terms used by the statute. See also Commonwealth v. Hampton, 3 Gratt. 590.
    
      It is believed there is no case in Virginia, in which, upon a motion to quash or on demurrer, any single term of a statutory definition has been dispensed with; and with but one exception, if that can be called such, none in which such a term has been supplied by an equivalent. The single case alluded to, is that of M’Clintic v. The Commonwealth, 1 Rob. R. 727. And the very slight departure, in that case, from a word used by the statute, and the substitution of another of equal or superior import, was clearly induced by the peculiar phraseology of the statute, and the awkwardness of framing an indictment, without such a substitution. It was an indictment under the act concerning roads. The act makes the owner of the land liable, when a fence built across a road shall “ remain” a certain length of time. The indictment alleged that the defendant “ continued” the fence built across the road, for a certain length of time. The law makes the individual, occupying a particular position, liable for the continuance of an existing thing, without any agency of his own. The indictment attributed to him an agency in its continuance, and by the same term, necessarily charged such continuance ; though not by the use of the exact word employed in the statute, hut by one of paramount signification ; and this was held sufficient.
    Surely the rule requiring the offence to be stated in the words of the statute, is fraught with no serious inconvenience. It is the simplest and easiest mode in which an indictment can be drawn ; one in which, generally, the pleader cannot go astray, without an inexcusable want of attention. The rule is not only valuable, in itself, for the protection of the rights of the accused; hut most salutary in its tendency to promote a compliance with the more important requisites of pleading: while a departure from it would not only lead to irregularities in matters of form, but indirectly to inaccuracies and defects in matters of substance. If the indictment be in the words of the statute, it must generally, if not universally, contain within the description. all that is material. While, therefore, the pleader is required to have the statute before him, and adhere closely to its language, omissions or inaccuracies will seldom occur. But should the rule be relaxed, negligence and carelessness would increase; indictments would be drawn without immediate reference to the statute; errors of substance would creep in, where those of form would not otherwise find their way; and the vital principles of pleading would have to be relaxed, or an increased number of delinquents go unpunished.
    But whether it be absolutely necessary to employ the words of the statute or not, it is well settled, that the offence, as to facts and circumstances, must be brought within the provisions and limitations of the statute creating or defining it, either by the use of the terms employed by the Legislature, or others clearly and necessarily equivalent. Commonwealth v. Israel, 4 Leigh 675; Roberts v. Commonwealth, 10 Leigh 686; and cases cited supra et infra.
    
    Let us, then, try the indictment under consideration by these tests.
    The first constituent of the offence supposed to have been attempted, is the shooting, or doing some one of the acts specified in the statute ; and neither of these is alleged in the indictment to have been attempted. The case of the Commonwealth v. Lester, 2 Va. Gas. 198, adjourned, however, on a motion in arrest of judgment, was in this respect very similar to this case ; and, it is submitted, is conclusive that this indictment is fatally defective in this point. The shooting, or other act, must be done with a certain intent, required by the statute ; but no intent at all is alleged. And the shooting with this intent must be unlawfully done. A man may shoot another with intent to kill him, under circumstances perfectly justifiable. So that it is not the shooting with intent to kill, that the Legislature intended to make, and did make, a felony; but the doing so, under circumstances unjustifiable and inexcusable, and therefore unlawful. As the plea of not guilty only puts in issue the allegations of the indictment, and the Commonwealth is only required to prove the matters alleged, (Fry, J. in Commonwealth v. Israel,) in such a case a man might regularly and truly be found guilty under the indictment, and yet be guiltless under the statute, as well as morally innocent. It is to guard against this very thing, that the word unlawfully is introduced into the statutory definition of this, and other offences similar in this respect. Accordingly it has been held in England, that the omission of this word, when it occurs in the statutory description of an offence, is fatal. The question, except upon a motion in arrest of judgment, it is believed, has not been adjudicated in Virginia. These acts, then, committed under these circumstances, being necessary to constitute the offence, and an .omission to charge either being fatal, an indictment for an attempt to commit the offence, should charge the attempt to commit the acts under the circumstances necessary to constitute it; and the omission of either will likewise be fatal. But it is not the mere attempt to commit the offence, that is made punishable by the statute. It is the .attempt, and in the attempt, the doing some act towards the commission of the of-fence. And as to this act, which constitutes the gravamen of the misdemeanor, the indictment is silent. It is unnecessary to say, there may be an attempt to commit an offence, without the completion of any act towards its accomplishment. In the commission of an offence, there will ever be preparatory or incipient acts. Of these there must be a first one. If the first be merely attempted, it will not constitute an offence ; but if it be completed, it will: unless, indeed, it be so remote as not to be considered as done in the attempt to commit the offence itself. But we are spared the necessity of this enquiry. The Legislature has, by its own enactment, made the distinction. It has, by the most express terms, superadded the necessity of doing some act, to the mere attempt to commit the offence; and surely the Courts, if the distinction were less palpable than it is, should not be asked to pronounce it unmeaning. This would be to reject the whole clause, by which the Legislature manifestly intended to designate the chief constituent of the offence.
    But it is contended that the indictment may refer generally to the offence attempted, without describing it. If, however, this were practicable, it would be in direct contravention of the rules of pleading already adverted to, as well as of another which will be noticed. But such a reference has not been, and cannot be, made. The offence has no name other than the statutory definition. There is no word or phrase under which can be grouped all its elements. There is no more concise or comprehensive way of charging it, than in the words of the statute. It is impossible to discard a single word of the statutory definition, without rejecting some necessary ingredient of the offence. But if the principle were correct, and applicable to this particular case, it would have no tendency to obviate the last and great objection to the indictment.
    The cases relied on to support the indictment, do not in the slightest degree intrench upon any of the positions taken against it. The rule of pleading, which is perhaps departed from” in these cases, is clearly distinguishable from those above noticed, and is not relied on for the defendant. It is in substance this: That it is not sufficient to charge the commission of an offence in general terms, however comprehensive they may be: but it is necessary, for various reasons, to set forth the particular acts constituting the offence, and the manner of their commission, in order to ascertain, with as much certainty as the nature of the case will conveniently admit, not merely the general character of the offence, but the identical offence to be proven. This rule has, in the case of the Commonwealth v. Daniels, and the cases cited by Wharton, been retrenched so far as it requires particularity beyond the terms of the statute, but no farther. Under these authorities, it is presumed that in this case it would not be necessary to set forth the manner, and the instrument with which the attempt to shoot was made, or, perhaps, the particular act done towards the commission of the offence. But this is totally different from a failure to allege that there was any attempt to shoot, or that any act was done towards its accomplishment; without which the offence was incomplete.
    
      
       Sess. Acts 1847-8, ch. 11, § 12, p. 123. Every free person who shall attempt to commit an offence prohibited by law, and in such attempt shall do any act towards the commission of such offence, but shall lail in the perpetration, or shall be intercepted or prevented in the execution of the same, where no express provision is made by law for the punishment of such attempt, shall be punished as follows : The act then proceeds to fix the penalty.
    
   Leigh, J.

delivered the opinion of the Court.

The Court is of opinion and doth decide :

1st. That the indictment ought to have alleged some act done by the defendant, of such a nature as to constitute an attempt to commit the offence mentioned in the indictment.

2d. That the Court ought to quash the indictment.

Which is ordered to be certified to the Circuit court.  