The State v. Anderson

• Decision Date: 26 September 1885
• Docket Number: 12,365
• Citation: 2 N.E. 332,103 Ind. 170
• Parties: The State v. Anderson
• Court: Indiana Supreme Court

2 N.E. 332

103 Ind. 170

The State v. Anderson

No. 12,365

Supreme Court of Indiana

September 26, 1885

From the Knox Circuit Court.

Judgment affirmed.

F. T Hord, Attorney General, W. A. Cullop, Prosecuting Attorney G. W. Shaw and C. B. Kessinger, for the State.

OPINION

Zollars, J.

The following indictment was returned against appellee, to wit:

"The State of Indiana, County of Knox.

"The State of Indiana v. George W. Anderson. Indictment for perjury.

"The grand jurors of the county of Knox, upon their oath, do present, that one George W. Anderson, on the 20th day of January, 1885, at the county of Knox, and State of Indiana did then and there, for the purpose of obtaining a continuance to another day of the trial of a certain civil action then and there pending before Edward McCrissoken, a justice of the peace of Vincennes township, Knox county, Indiana, wherein the State of Indiana, on the relation of Ella Walker, was plaintiff, and said George W. Anderson was defendant, did then and there feloniously, wilfully and corruptly, and voluntarily, make a certain false affidavit, and did then and there subscribe his name to said affidavit for the purpose of obtaining said continuance, and then and there feloniously, wilfully, corruptly and voluntarily took upon himself his corporal oath, and was then and there duly sworn that the contents of said affidavit were true in substance and in fact, which said oath was then and there administered to him by said Edward McCrissoken, justice of the peace as aforesaid, and who then and there had competent authority to administer oath in that behalf. That in said affidavit, made as aforesaid, for the purpose aforesaid, he, the said George W. Anderson, did then and there say, in behalf of himself, who was then and there defendant in said cause then pending in said court, under oath: 'Defendant says he is informed, and believes if he is granted the time under the law so to do, that he can prove by two men, at least, residing in Laporte, in Laporte county, in the State of Indiana, and they will testify that during her, Ella Walker's, stay there, in June and July, 1884, and since that time, they, each of said men, had sexual intercourse with her, and that during said time in Laporte she became pregnant, if at all, with a bastard child, and this defendant is not the father of said bastard child. Defendant says he can not give the names of said men at this day, nor time, because he has not been able to go to Laporte to ascertain their said names, for this reason, that on the 8th day of January, 1885, he was arrested in this case while just going out on his boat on a trip, and he did not return until the 17th day of January, 1885.' Which said affidavit was then and there, to wit, on the 20th day of January, 1885, subscribed by the said George W. Anderson, and sworn to by him before Edward McCrissoken, justice of the peace as aforesaid."

Here follows specific negations of every fact so sworn to in the affidavit. Following these negations the indictment is as follows: "And the said George W. Anderson then and there well knew that all of the portion of said affidavit above set out was wholly false. Wherefore the grand jury aforesaid, upon their oath aforesaid, do say that the said George W. Anderson, in manner and form as aforesaid, on the 20th day of January, 1885, in the county and State aforesaid, for the purpose of obtaining a continuance as aforesaid, did then and there, wilfully, feloniously, knowingly and voluntarily commit wilful and corrupt perjury."

On motion of appellee the indictment was quashed. The State has appealed.

There is no brief for appellee. We are informed by the prosecuting attorney in his brief, that the indictment was quashed upon the grounds: First. That it does not charge the offence in the language of the statute defining the offence of perjury; and, Second. That the action pending before the justice of the peace, in which the affidavit was filed, is not sufficiently described.

The statute provides that an indictment is sufficient if it can be understood therefrom: "Third. That an offence was committed within the jurisdiction of the court, or is triable therein. Fifth. That the offence is stated with such a degree of certainty that the court may pronounce judgment, upon a conviction, according to the right of the case." R. S. 1881, section 1755. It is further provided that no indictment shall be deemed invalid, nor shall the same be set aside or quashed, for any of the following causes: "Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant." R. S. 1881, section 1756. It will be seen that these statutes provide for liberal rules to be applied in passing upon the sufficiency of indictments.

There are two sections of the statute providing penalties for perjury, in each of which the words "wilfully, corruptly and falsely" are used in connection with the swearing. It is charged in the indictment before us, that appellee made a false affidavit to procure a continuance in a cause in which he was defendant. The charge is in the words of the statute except that the word falsely is omitted, and in its stead the word "feloniously" is used. It is charged that the affidavit was false, and that appellee well knew that the affidavit and all stated therein were wholly false, and that he wilfully, knowingly and voluntarily committed wilful and corrupt perjury. These several charges, in connection with the word feloniously, we think, ought to be regarded as the equivalent of the word "falsely." Under our statute and the decisions of this court, the indictment need not be in the exact words of the statute, but other words conveying the same meaning may be used. R. S. 1881, section 1737; Malone v. State, 14 Ind. 219; State v. Gilbert, 21 Ind. 474; State v. Walls, 54 Ind. 561; Shinn v. State, 68 Ind. 423. In the last case, it was held that the word "feloniously" is the equivalent of the word "unlawfully," used in the statute.

The case of State v. Dark, 8 Blackf. 526, was based upon a statute which enacted that every person who should "falsely make, deface, destroy, etc., any record, etc., shall be deemed guilty of forgery."

It was not charged in the indictment, that the offence was falsely committed, and for this reason there was a motion to quash it. For the word falsely in the statute, the words unlawfully and feloniously were used in the indictment. It was held that these words are more than equivalent to the word falsely, and that hence the indictment should not have been quashed. This case seems to be directly in point here, and sustains the indictment.

Mr. Bishop, in his work on Criminal Procedure, at section 922, vol. 2, says: "'Falsely' can not be essential, because the assignment of the perjury avers the swearing to be false."

We think that, taking the several charges in the indictment together, and keeping in view the liberal rules fixed by the statutes, they show and charge that the affidavit was falsely made, and that the omission of the word "falsely" is not a sufficient ground for quashing the indictment.

In claiming that the cause pending before the justice of the peace, and in which the perjury is charged to have been committed, is sufficiently described in the indictment, counsel for the State make the mistake of assuming that the prosecution is based upon section 2007, R. S. 1881, and not upon section 2006.

The perjury is charged to have been...