Allen v. State

• Decision Date: 05 January 1915
• Docket Number: No. 22680.,22680.
• Parties: ALLEN et al. v. STATE.
• Court: Indiana Supreme Court

183 Ind. 37

107 N.E. 471

ALLEN et al.

v.STATE.

No. 22680.

Supreme Court of Indiana.

Jan. 5, 1915.

Appeal from Circuit Court, Daviess County; Joseph E. Henley, Special Judge.

Daniel V. Wolf, Van Allen, Albert M. Perkins, and Perry Drake were convicted of conspiracy to defraud an insurance company, and they appeal. Affirmed.

Leroy M. Wade, of Vincennes, and A. J. Padgett, W. R. Gardiner, C. K. Tharp, C. G. Gardiner, and Alvin Padgett, all of Washington, Ind., for appellants. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Asst. Atty. Gen., for the State.

COX, J.

This was a prosecution instituted by an affidavit in two counts made against appellants and Albert M. Perkins by the state fire marshal. The first count purports to charge a felonious conspiracy to defraud an underwriter in fire insurance. Sections 2643, 2647, Burns 1914. The second count purports to charge a felonious conspiracy to commit the crime of arson. Sections 2260, 2647, Burns 1914. There was a jury trial which resulted in the acquittal of Perkins and a general verdict of guilty as charged by the affidavit as to appellants. Judgment on the verdict was pronounced against appellants, who were each fined $25 and sentenced to the state prison for an indeterminate period of from 2 to 14 years. Appellants duly filed a motion to quash each count of the affidavit on the ground that neither stated facts sufficient to constitute a public offense, and also a motion in arrest of judgment based on the same ground. These motions were both overruled, and these rulings of the court are assigned and relied on for reversal of the judgment.

The affidavit, omitting the caption and jurat, is as follows:

“William E. Longley, being duly sworn and upon his oath, states: That on the 1st day of September, 1912, at and in the county of Daviess and state of Indiana, the defendants, Daniel V. Wolf, Van Allen, Albert M. Perkins, and Perry Drake, did then and there unlawfully, knowingly, and feloniously unite, combine,conspire, confederate and agree, one with the other, for the unlawful, fraudulent and felonious object and purpose of knowingly making, and causing to be made, and causing to be presented, certain false and fraudulent representations as to the ownership and value of certain live stock and other articles of personal property, contained in certain applications for insurance to the Ætna Insurance Company of Hartford, Conn., for the object and purpose of then and there and thereby obtaining and procuring from said insurance company the execution to said Allen of certain four policies of insurance on said live stock, and other articles of personal property, insuring said Allen against damages and loss by fire thereof, and for the unlawful, fraudulent, and felonious object and purpose of knowingly making and presenting, and causing to be made and presented, to said company, by and through the defendants Van Allen, Daniel V. Wolf, and one Frank Cosby, certain false and fraudulent claims and proofs of loss, all of which is hereafter more fully and particularly described, for the fraudulent purpose and with felonious intent to obtain then and there and thereby money from said company as insurance money on the insurance policies so issued as aforesaid by it to the defendant Van Allen, and hereinafter mentioned.

That, to carry into effect and accomplish this object and purpose of said conspiracy, the said defendants on said date did then and there unite, combine, conspire, confederate, and agree one with the other, and among themselves, to enter into, and did then and there enter into, a carefully arranged, comprehensive, and fraudulent scheme and plan, more particularly hereinafter described in detail. That, as a part of said fraudulent scheme and plan to carry into effect the object and purpose of said conspiracy, the said defendants purchased divers and different heads of live stock, and other articles of personal property hereinafter mentioned, for small sums of money at divers places in said county, and at divers other places, for removal from said county, unknown to this affiant, but known to said defendants, and caused said live stock and other articles of personal property to be placed in, housed, and kept in a certain building, commonly known as a barn, in Daviess county, Ind., and which belonged to defendant Van Allen aforesaid. That thereafter, as a part of the same said fraudulent scheme and plan to carry into effect and accomplish the object and purpose of said conspiracy, the said defendant did then and there knowingly, and for the fraudulent purpose and with the felonious intent aforesaid, cause and procure the said Van Allen to make four certain applications to said company for insurance on said barn, live stock, and other articles of personal property, and knowingly and with like fraudulent purpose and felonious intent did then and there cause and procure the said Van Allen to make false and fraudulent representations in said application for said insurance as to the ownership and value of said barn, live stock, and other articles of personal property, to wit: [Here follow allegations of representations of the ownership by Van Allen and of the particular values of the various items of property as made in the applications for insurance.]

That the said defendants for the fraudulent purpose and with the felonious intent aforesaid, and in the furtherance of the objects and purpose of said conspiracy, knowingly caused and procured the said Van Allen to fix and state the ownership and values of property as aforesaid, for the corrupt and fraudulent purpose to deceive and mislead said insurance company as to the ownership and the actual values of the property valued by the said Van Allen, as above stated. That further in pursuance of the aforesaid fraudulent scheme, and to promote and to accomplish the objects and purposes of said conspiracy, the said defendants, for the fraudulent purpose and with the felonious intention aforesaid, knowingly caused and procured the said Van Allen to secure from the said insurance company, on the applications aforesaid, the execution to him (said Allen), by said company, of four insurance policies to cover and insure the said barn, the said live stock, and the said articles of personal property against loss or damage by fire. [Here follow allegations showing the issuance of four different policies, on dates set out, to indemnify Allen from loss by fire in specific amounts on the various items of property before described to the aggregate of more than $4,000.]

That at the time said insurance company received said applications for said four policies of insurance, and at the time said company acted upon said applications and executed said four policies of insurance to said Allen, said company had no knowledge whatever of the ownership and value of any of the said property embraced in and insured by any of the said policies, except such knowledge as the said company obtained from the said statements and representations contained in the aforesaid applications from said Allen for insurance. That said company believed the said statements and representations made by the said Allen in said applications for insurance, as to the ownership and value of the property therein mentioned, to be true, and relied upon the same as being true, and thus believing and relying upon said statements and representations to be true, and in full reliance thereon, executed said four policies of insurance to said Allen. [Here follow allegations negativing the truth of the valuations placed on the items of property in the application for insurance and averments of their actual value showing that insurance had been procured for a sum grossly in excess of the actual value thereof, all of which it is averred defendants at the time well knew.]

That at the time said...