Bader v. State

Decision Date28 April 1911
Docket NumberNo. 21,654.,21,654.
Citation94 N.E. 1009,176 Ind. 268
PartiesBADER v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Jasper County; C. W. Hanley, Judge.

Charles Bader was convicted of presenting a false and fraudulent claim to County Commissioners for allowance contrary to statute, and he appeals. Affirmed.Geo. A. Williams, Henry A. Steis, and B. H. L. Glazebrook, for appellant. Thomas M. Honan, J. E. McCullough, E. M. White, and Thomas H. Branaman, for the State.

MONKS, J.

Appellant, the secretary-treasurer and general manager of the Winimac Bridge Company, was prosecuted for making out and filing with the auditor of Jasper county, and causing the same to be presented to the commissioners of said county for allowance, an alleged false and fraudulent claim, in violation of section 2586, Burns 1908.

That part of the above section 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 upon conviction,” etc.

[1] Appellant contends that section 2586, Burns 1908, under which he was prosecuted, 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, 173 Ind. 483, 496, 90 N. E. 1019, 1025, where the court said: “The indictment shows that the claim as presented stated or exhibited a certain amount of work as having been performed, but in fact the amount of work actually done by the company was 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. *** These facts *** show that the claim, when presented, was a false one within the meaning of the statute in question.” Section 2586, Burns 1908.

In United States v. Shapleigh, 54 Fed. 126, 128, 136, 4 C. C. A. 237, 239, it is said: “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 more supplies than have been furnished such a claim is a false one within the meaning of the statute.”

[2] 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 true 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, 87 Ind. 97;State v. Williams, 139 Ind. 43, 38 N. E. 339, 47 Am. St. Rep. 255; 10 Enc. of Pl. & Prac. 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. Gillett's Crim. L. § 300; Moores & Elliott, Ind. Crim. L. § 1235. See, also, Ferris v. State, 156 Ind. 224-227, 59 N. E. 475.

In State v. Williams, 139 Ind. 43, 38 N. E. 339, 47 Am. St. Rep. 255, 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 cited in case above and 22 Cyc. 328; 12 Am. & Eng. Enc. of L. (1st Ed.) 522; United States v. Clark (C. C.) 37 Fed. 106;United States v. Nathan (D. C.) 61 Fed. 936;Rosen v. United States, 161 U. S. 29, 31, 32, 16 Sup. Ct. 434, 480, 40 L. Ed. 606;Price v. United States, 165 U. S. 311, 17 Sup. Ct. 366, 41 L. Ed. 727.

But even if we should test the affidavit in this case by the strict rule claimed by appellant, still it is good, for later in the affidavit it is charged that the Winimac 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 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.

[3] 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 information. Gillett's Crim. Law (2d Ed.) § 125; 22 Cyc. 292; State v. Hedge, 6 Ind. 330; Ward v. State, 50 Ala. 120; Fuller v. State, 117 Ala. 200, 23 South. 73;Reeves v. State, 116 Ala. 481, 23 South. 28;Peacock v. State (Ind.) 91 N. E. 597;Commonwealth v. Wright, 1 Cush. (Mass.) 46, 64, 65. The exact beginning and end of the claim as set out in the affidavit are clear, and the appellant could not have been misled or injured by the omission of the quotation marks.

[4] It is well settled that minor defects in an affidavit which are of such a nature that the accused has not been harmed by them are not cause for reversal in this court. Burns 1908, § 2063, subd. 10; Billings v. State, 107 Ind. 54, 57, 58, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77;Jay v. State, 69 Ind. 158;Musgrave v. State, 133 Ind. 297, 32 N. E. 885;Rivers v. State, 144 Ind. 16, 42 N. E. 1021;Drake v. State, 145 Ind. 210, 41 N. E. 799, 44 N. E. 188;Selby v. State, 161 Ind. 667, 69 N. E. 463;Fisher v. State, 2 Ind. App. 365, 28 N. E. 565;Ager v. State, 94 N. E. 819, this term. 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 “Winimac Bridge Co. 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 (this term).

[5] The fact that the proceedings were had against appellant by the wrong name cannot avail him, when he has pleaded not guilty and entered upon the trial of the case without making objection thereto. Burns 1908, § 2050; Gillett's Crim. Law (2d Ed.) §§ 127, 764; Uterburgh v. State, 8 Blackf. 202;State v. Brunell, 29 Wis. 435, 436, 439;Commonwealth v. Fredericks, 119 Mass. 199, 204; Gabe v. State, 6 Ark. 519, 523; Davids v. People, 192 Ill. 176, 185, 61 N. E. 537; Washington v. State, 68 Ala. 85. See, also, Agar v. State, 94 N. E. 819, this term.

[6] 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 the same cannot be introduced in evidence.

In Bouvier's Law Dictionary (15th Ed.) vol. 1, p. 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.” Bouvier's Law Dictionary, vol. 2, p. 781. Black's Law Dictionary (2d Ed.) p. 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 Dictionary (2d Ed.) p. 1203. In Words and Phrases, vol. 8, p. 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 statement of claim, as to the truth of the matter set forth.” In Patterson v. City of Brooklyn, 6 App. Div. 127, 128, 40 N. Y. Supp. 581, 582, 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 matter therein set forth.” In State v. Trook, 172 Ind. 558, 560, 88 N. E. 930, 931, “verify” is defined. The court says: “The primary definition of the verb ‘verify,’ when used in matters of law, as given in the Standard Dictionary, is: ‘To affirm under oath; confirm by formal oath, as, to verify pleadings in an action; to verify accounts,”’ etc.

The language of our statute providing for the filing and allowing of claims against counties (Burns...

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6 cases
  • Bader v. State
    • United States
    • Indiana Supreme Court
    • 28 avril 1911
  • Indiana Civil Rights Com'n v. City of Muncie, 2-1082A350
    • United States
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    • 8 février 1984
    ...Ind., 402 N.E.2d 1231, at 1233; Gossard v. Vawter, (1939) 215 Ind. 581, at 584-586, 21 N.E.2d 416, at 417. In Bader v. State, (1911) 176 Ind. 268, at 274, 94 N.E. 1009, 1011-1012, the Supreme Court defined verification " 'the certificate that the writing is true.' 2 Bouvier's Law Dict. (15t......
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    ...error must be shown affirmatively by the record, and the burden of so showing is upon the party complaining of it. Bader v. State, 176 Ind. 268, 94 N. E. 1009;Woodward v. State, 174 Ind. 743, 93 N. E. 169. In the absence of an affirmative showing of error, the presumption is that the ruling......
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