Herron v. State
Mississippi Supreme Court
Herron v. State, 118 Miss. 420 (Miss. 1918)
79 So. 289
Smith
Herron v. State
Opinion of the Court
delivered the opinion of the court.
The indictment upon which appellant was tried, which the reporter will set out, is fatally defective, in that it contains no allegation that appellant intended to defraud Jones Smokehouse, an intent to defraud being an essential element of the crime defined by chapter 120 of the Laws of 1916 (section -897, Hemingway’s Code), upon which the indictment is predicated.
Since the omitted allegation goes to the very essence of the offense attempted to be charged the omission thereof was not waived by appellant’s failure to demur
Reversed and remanded
Reference
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- Syllabus
- 1. Banks and Banking. Indictments. Requisites. Sufficiency. Under chapter 120, Laws 1916, (Hemingway’s Code, Section 897), an indictment for obtaining money on a check knowing that the drawer at the time of making the check did not have sufficient funds in or credit with the bank for the payment of such check, is fatally defective if it fails to allege that accused intended to defraud the party to whom he presented and who cashed the check, an intent to defraud being an essential element of the crime. 2. Indictment and Information. Waiver of error. Failure to demur. Where an omitted 'allegation in an indictment goes to the very essence of the offense attempted to be charged, the omission thereof was not waived by accused’s failure to demur thereto, notwithstanding section 1426, Code 1906, (Hemingway’s Code, section 1182), requiring objections to an indictment for a defect appearing on its face to be taken by demurrer and not otherwise.