Opinion
No. 81-069
Decided February 12, 1982
1. Criminal Law — State's Burden of Proof — Elements of Offense Where an indictment charged that the defendant, believing his trial for assault and criminal threatening was pending before the district court, purposely attempted to induce a witness to absent herself from the trial knowing she had been summoned by saying to the witness, "If you don't appear I will pay your fine no matter what the amount is," and when the witness declined, saying, "If I pay whatever fine you get and give you extra money will you consider", the indictment informed the defendant of the nature and cause of the accusation with sufficient definiteness to allow him to prepare for trial, alleged every element of the offense of witness-tampering, and the State was not required to prove that, in talking with the witness, the defendant used the precise words alleged in the indictment. RSA 641:5.
2. Criminal Law — State's Burden of Proof — Elements of Offense Where an indictment charging the defendant with witness-tampering informed the defendant of the date and place of the offense and the fact that he was charged with attempting to induce a witness to absent herself from trial knowing she had been summoned, attempting to induce the witness to absent herself was the gravamen of the offense charged, and where the witness' testimony at trial concerning the defendant's words, though it did not include his precise words, did not vary materially from the words alleged in the indictment, the indictment alleged every element of the offense, the proof supported the necessary findings and, therefore, the trial court properly denied defendant's motions for a directed verdict. RSA 641:5.
Gregory H. Smith, attorney general (Paul J. Barbadoro, attorney, on the brief), by brief for the State.
James E. Duggan, of Concord, appellate defender, by brief for the defendant.
The defendant was charged with witness-tampering under RSA 641:5 and was found guilty. The issue in this case is whether the State was required to prove that, in talking with the witness, the defendant used the precise words alleged in the indictment. We hold that the State was not so required.
The indictment charged that the defendant, believing his trial for assault (RSA 631:2-a (Supp. 1979)) and criminal threatening (RSA 631:4) was pending before the Concord District Court, "purposely attempted to induce Jody Welch to absent herself from the trial knowing she had been summoned by saying to Jody Welch, `If you don't appear I will pay your fine no matter what the amount is,' and when Jody Welch declined, saying, `If I pay whatever fine you get and give you extra money will you consider.'"
At trial, Jody Welch testified that on July 23, 1980, the morning she was scheduled to testify against the defendant, she received a telephone call from a friend who said Steven Miner wanted to talk with her. Steven Miner then took the telephone and asked Welch if she intended to be a witness against him. Welch said she had to testify because she had been subpoenaed. The defendant then offered to pay her a sum of money for not appearing. She declined, saying she would be held in contempt of court and fined a large amount of money if she did not appear to testify. The defendant responded that he did not care how much money was involved. At trial, on cross-examination, Jody Welch testified that she remembered the gist of the conversation with Miner, although she could not remember his precise words.
At the close of the State's case, the defendant moved for a directed verdict on the ground that the State had not proved the precise language in the indictment. After the court's charge, which included an instruction that only the "substance" of the indictment need be proved, the defendant renewed his motion for a directed verdict, but it was again denied by DiClerico, J. After a guilty verdict, the defendant appealed to this court.
[1, 2] The indictment in this case informed the defendant of the nature and cause of the accusation with sufficient definiteness to allow him to prepare for trial. State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778 (1981); State v. Merski, 121 N.H. 901, 914, 437 A.2d 710, 718 (1981); State v. Greenwood, 113 N.H. 625, 626, 312 A.2d 695, 696 (1973). It informed him of the date and place of the offense and the fact that he was charged with attempting "to induce Jody Welch to absent herself from the trial knowing she had been summoned. . . ." Attempting to induce the witness to absent herself is the gravamen of the offense charged, see RSA 641:5 I(d), and the witness' testimony concerning the defendant's words, though it did not include his precise words, did not vary materially from the words alleged in the indictment. See State v. Greenwood, 113 N.H. at 626, 312 A.2d at 697. Compliance with ancient, technical rules is not required. The criminal process is not a game. The indictment alleged every element of the offense, see State v. Merski, 121 N.H. at 914, 437 A.2d at 718; State v. Taylor, 121 N.H. at 495, 431 A.2d at 778, and the proof supported the necessary findings. No more is necessary.
Affirmed.
BATCHELDER, J., did not participate.