Page:Harvard Law Review Volume 10.djvu/135

109 IMPROVEMENT IN CRIMINAL PLEADING. 109 embezzle or convert the bullion, money, notes, bank notes, checks, drafts, bills of exchange, obligations, or other securities for money, of any person, bank, incorporated company, partnership, city, town, or county, by a cashier, or other officer, clerk, agent, or servant of such person, bank, incorporated company, partnership, city, town, or county, it shall be sufficient to allege generally in the indictment an embezzlement, fraudu- lent conversion, or taking with such intent, of money to a certain amount, without specifying any particulars of such embezzlement; and on the trial evidence may be given of any such embezzlement, fraudulent con- version, or taking with such intent, committed within six months next after the time stated in the indictment ; and it shall be sufficient to main- tain the charge in the indictment, and shall not be deemed a variance, if it is proved that any bullion, money, notes, bank note, check, draft, bill of exchange, or other security for money of such person, bank, incorporated company, partnership, city, town, or county, of whatever amount, was fraud- ulently embezzled, converted, or taken with such intent, by such cashier, or other officer, clerk, agent, or servant, within said period of six months." It was contended in Com. v, Bennett,^ that this statute was un- constitutional. The allegation in the indictment was " certain money to the amount and value of twenty-five thousand dollars. . . did embezzle and fraudulently convert to his own use." This was held sufficient under the statute. With reference to the claim of unconstitutionality, the court said, *' Nor is it open to the objection that the offence is not set forth ' fully and plainly, substantially and formally,' as required by the Declaration of Rights, Art. XII. The defendant, if he had desired, could have applied for a specifica- tion of the particular acts relied on by the government, as may be done in other cases where the offence is of a general nature, and the charge is in general terms. Such an application might have been made at the trial, and granted by the court if in its discretion the circumstances of the case required it." The power of the court to order specifications is undoubted, and has been exercised from early times ; so no surprise is waiting the defendant at the trial in cases where the allegation is general.^ From these cases it is reasonably plain that the courts will sanction, and even welcome, statutes which will assist in simplifying criminal pleading and procedure; and that, if the statute provides that the real and substantial elements which go to make up the offence are 1 118 Mass. 443. publishing a libel, was required to furnish specifications in support of justification.
 * See Com. v. Snelling, 15 Pick. 321, where the defendant, who had been indicted for