Hunke, Maurice R.

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 39 Number 1 Article 10 1963 Indictment and Information - Videlicet - Will Use of Vidleicet Dispense with Necessity of Strictly Proving Averment Made Thereunder Maurice R. Hunke Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Hunke, Maurice R. (1963) "Indictment and Information - Videlicet - Will Use of Vidleicet Dispense with Necessity of Strictly Proving Averment Made Thereunder," North Dakota Law Review: Vol. 39 : No. 1 , Article 10. Available at: https://commons.und.edu/ndlr/vol39/iss1/10 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. NORTH DAKOTA LAW REVIEWthe witness. Evidence showed she had sufficient qualifica-tions to be deemed an expert, and she did give an expressopinion. It is submitted that a similar result in North Dakotawould be unlikely. To disallow the testimony in the principalcase would seem to be an overstep of proper judicial review.The true question involved was the degree of expertness ofthe witness, and as such it was a valid issue to be submittedto the jury. The appellate court should not have so impairedthe proper exercise of discretion exercised in the lower court.R. JON FITZNERINDICTMENT AND INFORMATION - VIDELICET - WILL USE OFVIDLEICET DISPENSE WITH NECESSITY OF STRICTLY PROVINGAVERMENT MADE THEREUNDER? - The defendant was alicensed package dealer in intoxicating liquors. A statuteprovided that: "No licensee shall sell any intoxicatingliquor: (a) To any person under the age of twenty-oneyears . . . . "- The information on which defendant was pros-ecuted alleged that he "unlawfully sold intoxicating liquor, towit: one quart of Stillbrook whiskey." The trial court in-structed the jury that the only question for them to decidewas whether or not defendant sold intoxicating liquor to theminor and thus, in effect, it was not necessary to find thathe, in fact, sold Stillbrook whiskey. Defendant was convictedand appealed. In reversing the decision the Supreme Court ofSouth Dakota held, one justice dissenting, that the state neednot have alleged that the liquor was Stillbrook whiskey; buthaving done so, it became a matter of essential descriptionand must be proved. State v. Sudrala, 116 N.W.2d 243 (S.D.1962).In the quoted portion of the information above the allegedfact preceded byi the words "to wit" is said to be "laid under avidelicet. ' ' 2 That technical name is also given to "that is tosay"'3 and "namely."4At common law the allegation of a fact under a videlicet1. S.D.C. § 5.0226(2) (1939).2. People v. Shaver, 367 Ill. 339, 11 N.E.2d 400 (1937); Luka v. Behn,225 Ill. App. 105 (1922).3. Garrison v. City of Shreveport, 179 La. 605, 154 So. 622 (1934).4. Taney County v. Empire Dist. Elec. Co., 361 Mo. 572, 235 S.W.2d 271(1951). (The frequently used "viz." is an abbreviation of videlicet).[Vol. 39RECENT CASESnecessitated strict proof of the averment.5 Apparently, oneof the reasons for requiring strict proof of the fact was tomake certain the accusation against a defendant so that hemight prepare his defense and plead the judgment as a barto a subsequent prosecution for the same offense.6  It is saidthat: "If a necessary allegation is made unnecessarily minutein description, the proof must satisfy the descriptive as wellas the main part, since the one is essential to the identity ofthe other."'Some jurisdictions have weakened the effect of the exactingcommon law rule.8 An early Illinois case stated that theoffice of a videlicet is "to indicate that the party does notundertake to prove the precise circumstances as alleged." 9It should be noted, however, that in a later case the IllinoisSupreme Court declared that proof is required if the matterlaid under the videlicet is material to the charge.10 A require-ment of proof when the allegation under a videlicet is materialappears to be a clearly establish rule." When the fact allegedis not material, it is generally treated as surplusage.12The court in the instant case relied on a Dakota Territorycase which suggested that an allegation of "kind" is materialif "descriptive of the identity of the subject of the action."' 3Admittedly, the allegation of Stillbrook whiskey was descrip-tive and made specific that which before was general. How-ever, it is submitted that the allegation is not material to theoffense charged, the statutory offense of selling "any intoxi-cating liquor" to a minor.MAURICE R. HUNKEINTERNAL REVENUE - INCOME TAX - BUSINESS OR NON-BUSINESS BAD DEBTS - SCOPE OF "TRADE OR BUSINESS" -5. State v. Scovill, 15 S.W.2d 931, 935 (Mo. 1929).6. See, e.g., McLendon v. State, 121 Ga. 158, 48 S.E. 902 (1904); Statev. Sinnott, 72 S.D. 100, 30 N.W.2d 455 (1947).7. 2 BISHOP'S NEW CRIMINAL PROCEDURE § 485(2) (2d ed. 1913).8. See, e.g., Columbian Three Color Co. v. Aneta Life Ins. Co., 183 Ill.App. 384 (1913); State v. Heck, 23 Minn. 549 (1877); Culp v. Virginian Ry.80 'A. Va. 98, 92 S.E. 236 (1917).9. Chicago Terminal Transfer R.R. v. Young, 118 Ill. App. 226, 229(1905).10. People v. McCanney, 205 Ill. App. 91, 98 (1917):11. See, e.g., cases cited in note 8, supra.12. See, e.g., Tullis v. Shaw, 169 Ind. 662, 83 N.E. 376 (1908).13. Brugier v. United States, 1 Dak. 5, 46 N.W. 502 (1867).1963]

Indictment and Information - Videlicet - Will Use of Vidleicet Dispense with Necessity of Strictly Proving Averment Made Thereunder

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Indictment and Information - Videlicet - Will Use of Vidleicet Dispense with Necessity of Strictly Proving Averment Made Thereunder

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