Bader v. State, 21,654

Citation94 N.E. 1009, 176 Ind. 268
Case DateApril 28, 1911
CourtSupreme Court of Indiana

Rehearing Denied June 29, 1911.

From Jasper Circuit Court; Charles W. Hanley, Judge.

Prosecution by The State of Indiana against Charles Bader. From a judgment of conviction, defendant appeals.


George A. Williams, H. A. Steis, B. D. Glazebrook and M. M Hathaway, for appellant.

James Bingham, Attorney-General, Fred Longwell, Prosecuting Attorney, A. G. Cavins, Edward M. White and William H Thompson, for the State.


Monks, J.

Appellant, the secretary-treasurer and general manager of the Winamac Bridge Company, was prosecuted for making out and filing with the auditor of Jasper county, and causing to be presented to the commissioners of said county for allowance, an alleged false and fraudulent claim, in violation of § 2586 Burns 1908, Acts 1905, p. 584, § 675. That part of said act applicable to this case is as follows: "Whoever, knowing the same to be false or fraudulent, makes out or presents for payment or certifies as correct to * * * the county auditor, or the board of commissioners or other officer of any county, * * * any claim, bill, note, bond, account, pay roll or other evidence of indebtedness, false or fraudulent, for the purpose of procuring the allowance of the same or an order for the payment thereof, out of the treasury of said * * * county * * * shall, on conviction," be imprisoned, etc.

Appellant contends that said § 2586 does not cover a fraudulent claim arising from a valid contract, as in this case, but only applies "where the basis of the claim was without any fact or transaction to support it." This point was before this court and was decided adversely to the contention of appellant in the case of Brunaugh v. State (1910), 173 Ind. 483, 496, 90 N.E. 1019, where the court said: "The indictment shows that the claim as presented stated that a certain amount of work was performed, but that in fact the amount of work actually done by the company was very much less than that stated in the claim presented, and that the claim was for more money than was actually due upon the work which the company had done during the month of April, 1907. These facts, * * * show that the claim, when presented, was a false one within the meaning of the statute in question."

In the case of United States v. Shapleigh (1893), 54 F. 126, 128, 136, 4 C. C. A. 237, the court quoted from an instruction of the trial court, as follows: "A claim against the government is a 'false' one, within the meaning of the statute, if it is an untrue claim; for example, if a claim is made for labor or supplies said to have been furnished to the government, and the claim is made for more services than have been actually rendered, or for more supplies than have been furnished, such a claim is a false one within the meaning of the statute."

Appellant further contends that the affidavit is not sufficient, because it does not allege that he knew the claim in question was false or fraudulent. It is a general rule, as counsel contend, that in cases where the statute expressly makes knowledge of the fact that the claim is false or fraudulent a necessary element of the offense, it must be alleged. 22 Cyc. 327; Powers v. State (1882), 87 Ind. 97; State v. Williams (1894), 139 Ind. 43, 47, 38 N.E. 339 Am. St. 255; 10 Ency. Pl. and Pr. 495. But the affidavit in this case does allege knowledge, and is in this respect sufficient.

It alleges that appellant "unlawfully, feloniously and knowingly made out and filed * * * a certain false and fraudulent claim," etc. This is the usual form of alleging knowledge. See Gillett, Crim. Law (2d ed.) § 300; Moores & Elliott, Indiana Crim. Law § 1235. See, also, Ferris v. State (1901), 156 Ind. 224, 225-227, 59 N.E. 475.

In the case of State v. Williams, supra, the same question was presented to the court and carefully considered. In that case the allegation that the defendant "did then and there unlawfully, falsely, fraudulently and knowingly utter, publish and pass * * * as true and genuine a certain false, forged and counterfeit promissory note," was held to be a sufficient allegation that the defendant knew the note was false, forged and counterfeit. See authorities given in the case just cited. See, also, 22 Cyc. 328; 12 Am. and Eng. Ency. Law 522; United States v. Clark (1888), 37 F. 106; United States v. Nathan (1894), 61 F. 936; Rosen v. United States (1896), 161 U.S. 29, 31, 32, 16 S.Ct. 434, 40 L.Ed. 606; Price v. United States (1897), 165 U.S. 311, 17 S.Ct. 366, 41 L.Ed. 727.

But even if we test the affidavit in this case by the strict rule claimed by appellant, it is good, for later in the affidavit it is charged that the Winamac Bridge Company had "no just or lawful demand therefor against said county as he then and there well knew." This could mean nothing if it does not mean that appellant presented a claim with the knowledge, at the time he presented it, that it was false and fraudulent.

The next contention of appellant is that the affidavit is bad for uncertainty, in that it does not give either the substance or the exact copy of the claim referred to.

Appellant concedes that the affidavit might describe the claim upon which the prosecution is based, either by setting out its substance or by setting out an exact copy. He insists, however, that by using the words, "of the tenor following," the affidavit undertakes to set out an exact copy of the claim. This is what the affidavit does, and the claim, as alleged, was given in evidence. The point made by appellant, that the quotation marks are necessary in the affidavit to inform him of where the claim ends, and that because they are omitted it is too uncertain, is not well taken. It is well settled that where the meaning is clear, a mere mistake in grammar, spelling or punctuation does not vitiate an indictment or affidavit. Gillett, Crim. Law (2d ed.) § 125; 22 Cyc. 292; State v. Hedge (1855), 6 Ind. 330; Ward v. State (1873), 50 Ala. 120; Fuller v. State (1897), 117 Ala. 200, 23 So. 73; Peacock v. State (1910), 174 Ind. 185, 91 N.E. 597; Commonwealth v. Wright (1848), 1 Cush. (Mass.) 46, 64, 65. The exact beginning and end of the claim as set out in the affidavit are clear, and appellant could not have been misled nor injured by the omission of the quotation marks.

It is well settled that minor defects in an affidavit, of such a nature that the accused has not been harmed by them, are not cause for reversal in this court. § 2063, subd. 10, Burns 1908, Acts 1905 p. 584, § 192; Billings v. State (1886), 107 Ind. 54, 57, 58, 57 Am. Rep. 77, 6 N.E. 914; Jay v. State (1879), 69 Ind. 158; Musgrave v. State (1893), 133 Ind. 297, 32 N.E. 885; Rivers v. State (1896), 144 Ind. 16, 42 N.E. 1021; Drake v. State (1896), 145 Ind. 210; Selby v. State (1904), 161 Ind. 667, 69 N.E. 463; Fisher v. State (1891), 2 Ind.App. 365, 28 N.E. 565; Agar v. State, (1911), ante, 234. It is evident that said objections made to the affidavit are not tenable.

Appellant contends that the court erred in admitting in evidence a claim verified by the "Winamac Bridge Company, by C. L. B." The claim is identical with that set out in the affidavit, and the evidence shows, without conflict, that the claim introduced was made out and sworn to by appellant, and by him mailed to the auditor of Jasper county. Agar v. State, supra. The fact that the proceedings were had against appellant under a wrong name cannot avail him, when he has pleaded not guilty, and entered upon the trial of the case without making objection thereto. § 2050 Burns 1908, Acts 1905 p. 584, § 179; Gillett, Crim. Law (2d ed.) §§ 127, 764; Uterburgh v. State (1846), 8 Blackf. 202; State v. Brunell (1872), 29 Wis. 435, 438, 439; Commonwealth v. Fredericks (1875), 119 Mass. 199, 204; Gabe v. State (1845), 6 Ark. 519, 523; Davids v. People (1901), 192 Ill. 176, 185, 61 N.E. 537; Washington v. State (1880), 68 Ala. 85. See, also, Agar v. State, supra.

The only other theory under which appellant can say that this is not the claim set out in the affidavit, is that the verification is a part of the claim, and that as the State has not set out the verification as a part of the claim it cannot be introduced in evidence.

In 1 Bouvier's Law Dict. (15th ed.) 320, a claim is defined as "the assertion of a liability to the party making it to do some service or pay a sum of money." A verification is defined by the same author as "the certificate that the writing is true." 2 Bouvier's Law Dict. (15th ed.) 781.

Black's Law Dict. (2d ed.) 205 says: "A claim is a right or title, actual or supposed, to a debt, privilege, or other thing in the possession of another." Verification is defined as a "confirmation of the correctness, truth, or authenticity of a pleading, account, or other paper, by an affidavit, oath, or deposition," Black's Law Dict. (2d ed.) 1203.

In 8 Words and Phrases 7296 it is said: "The term 'verified,' as applied to pleadings and statements of claims filed with municipal officers, has a settled meaning, and refers to an affidavit attached to such a statement of claim, as to the truth of the matters therein set forth."

In the case of Patterson v. City of Brooklyn (1896), 6 A.D. 127, 128, 40 N.Y.S. 581, the action related to a claim filed with the controller of the city of Brooklyn, which claim, under the law, was required to be verified. The court said: "The term 'verified,' as applied to pleadings and statements of this character, has a settled meaning in our statutory law, and it refers to an affidavit attached to the statement as to the truth of the matters therein set forth."

In the case of State v. Trook (1909), 172 Ind 558, 560, 88 N.E. 930, the word "v...

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    • United States
    • Indiana Supreme Court of Indiana
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