Locke vs. The State. then the object is sought to be accomplished by requiring the father, at his option, to give the bond, or execute a recognisance to appear and answer before the Superior court to the charge of a misdemeanor, as defined in the code. If the former is done, then again the whole matter is at rest; if the latter, then comes the indictment and trial. The proceedings under the act of 1793, are civil rather than criminal, and are very much exparte in their character, woman. Now, if the offence consists in the refusal or failure to give the bond according to the act of 1793, then this indictment is sufficient, for, in addition to the recitals in it, it expressly charges such refusal. We think the offence does not consist in the refusal, or failure to give bond-that is, the offence is not complete by reason of such failure. The option allowed the reputed father, to give the bond or appear and answer, is for his benefit. It is in the nature of an appeal from the judgment of the magistrate, that he shall give the bond. That judgment is founded on the oath of the The act of 1793 seems to be imperative upon the magis trate to arrest the reputed father, upon her oath revealing his name, and equally imperative when he is arrested, to exact the bond, or bind him over. Whether he has the right to traverse the oath of the woman, and show that he is not in fact the father, before the magistrate, has been questioned. By the act of 1802, it would seem that this right is given. But if he has the right, still it is only before the magistrate; it is no trial by a jury upon indictment found and setting forth distinctly the nature and grounds of his offence. His guilt or innocence is made to depend upon the disFor, if the offence consists in the failure cretion of the magistrate. or refusal to give bond, then upon the trial before the Superior court, the case is made out by proof that he did so fail or refuse. Upon this construction he is deprived of his day in court, of the right of trial by jury, and of all its incidents. Upon the oath of a lewd woman and a judgment of a justice of the peace, he is found guilty of being the father of a bastard child. We cannot believe for a moment that this offence is complete upon the reputed. father's refusing or failing to give bond. Whilst we admit that he can in no case be put upon trial, much less convicted, if he does give the bond, and that there can be no offence unless he does refuse or fail to give it, and whilst we hold that such refusal or failure must be averred in the bill of indictment and proved upon the trial, yet we hold that the fact of being the father, constitutes the misdemeanor, and that that fact must be distinc ་ Locke vs. The State. alleged in the indictment. It is true that the defendant cannot be found guilty, unless it be proven that he did in fact refuse or fail to give bond; it is, however, not the less true, that he cannot be found guilty unless he is proven to be the father of the child. This view of the subject is demonstrated to be the true view, by reference to the definition of the offence in the code already quoted. It is therein declared, that if the putative father shall refuse or fail to give security for the maintenance and education of the child, &c., he shall be indicted for a misdemeanor, "and on conviction of the fart of being the father of such bastard child or children, and of his refusal or failure to give such security, he shall be pun. ished," &c. His punishment is made to depend upon the fact of his being the father-upon conviction of the fact; without conviction, that is, without the finding of that fact by the jury, he cannot be punished. The necessity of his being convicted of that fact, is not weakened by the further necessity that he must be convicted of a refusal or failure to give bond. I believe that this meaning of the legislature is as plain as if they had said, this misdemeanor shall consist in being the father of the child and in refusal or failure to give bond for its maintenance and education. If, then, the offence consists in part or in whole of being the father of the child, is it necessary to charge it in the indictment? As to this we are all clear; we think it ought to be charged, not by inference or implication, but distinctly and substantively charged. This indictment would be bad at common law. Before proceeding, I premise that greater strictness is required in criminal than in civil proceedings. 1 Chitty Crim. Law, 172; 1 Leach 134, 145. The rule at common law is, that indictments should be framed with sufficient certainty; for this purpose the charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation. Coup. R. 682, 683; 5 Term R. 611, 623; 1 Leach 249; Fost. 194; 2 Term R. 586; 3 Inst. 41; 2 M. & S., 386; 1 Chitty Crim. Law, 168, 169, 170. The reasons for this rule are, that the defendant may not be put upon his trial for an offence different from that which the grand jury have found; that the defendant may know what crime he is called upon to answer; that the jury may know what issue is presented to them to find, and may be warranted in their verdict of guilty or not guilty; that the court may see such a definite offence on Locke vs. The State. record that they may apply the judgment and the punishment which the law prescribes; and that the defendant's conviction or acquittal may insure his subsequent protection should he again be questioned on the same ground, and enable him to plead his conviction or acquittal in bar of any subsequent proceedings. If I am right as to what constitutes this crime, then I say there is no certain description of the offence, because in the bill there is no allegation of that fact, which is indispensable to the perfecting the offence, to wit, the paternity of the child. There can be no certainty in the description of a fact, when there is no attempt to describe that fact whatever. All the reasons given for the rule, illustrate the glaring deficiency of this bill; their application is so easy, that any attempt to make it would be a work of supererogation. The next question is, is the indictment sufficient under our own [2.] statute? The legislature have declared that "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence charged may be easily understood by the jury." Prince 658. I think that it will scarcely be said that this indictment states the offence in the language and terms of the code, since none of the terms or language of the code, in relation to the paternity of the child, are found in it. Does it, then, so plainly state the offence that its nature may be easily understood by the jury? It now becomes necessary to refer to the statements in the bill. The facts stated therein are, that the defendant was arrested by virtue of a warrant issued by one Green Andrews, a justice of the peace; that the warrant was issued upon the affidavit of one Nancy alias Ann Wells, a free single white woman, charging him with being the father of a child with which she was pregnant, and which was likely to be born a bastard, and to become chargeable to the county; that the defendant was brought before the said Green Andrews, and by him required to give bond and security, in terms of the law, for the maintenance and education of the child; which bond the defendant refused and failed to give. These are all the statements in the bill that are material. An intelligent juryman, by hearing this indictment read, might infer that the defendant was charged with being arrested under this warrant; that he was charged with being arrested under a warrant which issued on the affidavit of one Nancy, or Aun Wells, which affidavit-charged him Locke es. The State. with being the father of a bastard child; and that he was also charged with refusing to give bond and security for the maintenance and education of the child. All these things he might understand; he would, however, naturally inquire, what is the issue. made? what am I to try! My verdict is to be guilty or not guilty, but not guilty or guilty of what? His conclusion must be, that the issue for him to try is this: is the defendant guilty or not guilty of failing or refusing to give the bond? He would infer, and such is the inference of the law on this bill of indictment, that that was the issue presented for his determination, and that the offence charged consisted in the defendant's refusal to give the bond. But upon the ruling of this Court that the offence does not consist in that alone, but mainly in the fact that the defendant was the father of the child, could he easily infer that he was called upon to try whether he was or was not the father? In the absence of a distinct allegation that the defendant was the father of the child, could the juryman easily understand the nature of the offence charged? We think he could not. The requirement of the statute is, that the offence must be so plainly stated that the juryman may easily understand its nature. Our construction of this statute is, that the indictment should leave nothing to inference or implication; but that its statements should be so plain that a common man may without doubt or difficulty, from the language used, know what is the charge made against the accused. This indictment was, no doubt, held sufficient in the Court below, upon the ground that the charge that the defendant was the father of the child, was to be inferred or implied from the statements made that such was the intendment of the law. We hold that in criminal pleadings, both under our statute and at common law, defective allegations cannot be helped by legal intendment. "The charge (says Mr. Chitty) must be sufficiently explicit to support itself; for no latitude of intention can be allowed to include any thing more than is expressed." 1 Chitty Crim. Law, 172. In the case of The King vs. Wheatly, 2 Burrow R. 1127, Lord Mansfield holds the following language: "But after a verdict they (the court) are obliged to arrest the judgment if they see the charge to be insufficient. And in a criminal charge there is no latitude of intendment to include any thing more then is charged. The charge must be explicit enough to support itself." See also, 2 M. & S. 381. In the case of The United States vs. Clark, I Gallison C. C. R. Sayre & Sayre vs. Flournoy, adm'r, and others. 497, it is ruled, that an indictment for an offence created by statute must bring the case within the terms of the statute, and no argumentative inferences will supply the want of direct averments of material facts. Admitting every thing to be true which this bill charges, the defendant is not guilty of any offence for which he can be punished. The judgment therefore must be arrested. Judgment arrested. No. 71.-ROBERT S. SAYRE and WILLIAM H. SAYRE, plaintiffs in error vs. ROBERT WATKINS FLOURNOY, adm'r. of Robert Willis Flournoy, deceased, and NATHANIEL A. ADAMS, and MARY M. his wife, defendants in error. [1.] A court of equity will aid a judgment creditor who has pursued his legal remedies to every available extent, to reach a distributive share of an estate to which an insolvent debtor is entitled in his own right, in the hands of an administrator, held in trust for such judgment debtor. [2] The husband has no interest vested in him in his wife's choses in action, until he reduces them into his possession, and as a general rule, a court of equity will not compel the husband to reduce them into possession, so as to defeat the wife's right of survivorship thereto. [3.] Creditors of the husband who claim to be subrogated to his rights, as against the property of the wife, have no other rights than the husband who is their debtor, against such property. In Equity. Bill and demurrer. Court. Tried before Judge HOLT. From Washington Superior The plaintiffs in error filed their bill on the equity side of the Court below, alleging that they as former partners using the style of William H. Sayre and company, obtained judgment in Hancock Inferior court, February, 18:29, against said Nathaniel A. Adams, for $1,107 70, and $170 73 interest and costs; that execution was issued and several returns of nulla bona had thereon, and that the same was still due, no part thereof having been paid thereon. The bill further alleged, that the original consideration and origin of their debt was merchandise and necessaries supplied by them |