Beneks v. State

• Decision Date: 24 May 1935
• Docket Number: No. 26384.,26384.
• Citation: 196 N.E. 73,208 Ind. 317
• Parties: BENEKS v. STATE.
• Court: Indiana Supreme Court

208 Ind. 317

196 N.E. 73

BENEKS

v.STATE.

No. 26384.

Supreme Court of Indiana.

May 24, 1935.

Peter Beneks was convicted of procuring another to set fire to certain property for purpose of defrauding insurance company which had a policy on the property and he appeals.

Reversed with instructions.Appeal from Superior Court, La Porte County; Harry L. Crumpacker, judge.

Walter Parent and Robert S. Baker, both of Michigan City, John G. Yeagley, of South Bend, and Matt J. Kenefick, of Michigan City, for appellant.

Philip Lutz, Jr., Atty. Gen., and James D. Sturgis, Asst. Atty. Gen., for the State.

FANSLER, Chief Justice.

Appellant was charged with and convicted of having procured one Nick Pasko to set fire to restaurant fixtures, equipment, and supplies, the property to appellant, for the purpose of defrauding an insurance company which had a policy upon the property.

The overruling of appellant's motion to quash the indictment is assigned as error. It is contended that the indictment does not charge that there was a fire insurance policy in full force and effect. That part of the indictment involved reads as follows: ‘For which said restaurant fixtures, equipment and supplies a policy of insurance for one thousand ($1,000.00) dollars had been issued to one Peter Beneks by the Homestead Fire Insurance Company, a foreign corporation, of the City of New Tork, State of New York, with intent to defraud said insurance company.’ It is contended that the allegation that the property had been insured was not a sufficient allegation that it was insured at the time of the fire. The allegation that the building was burned with intent to defraud the insurance company compels the inference that the policy was in force, and that it was so intended to be alleged. Our Criminal Code requires no greater certainty in criminal pleadings than is required in civil ones. The statute provides that the allegations as against a motion to quash must be certain only to a common intent, and the pleading will be deemed to allege all that can be implied from direct allegations therein by a reasonable and fair intendment. The question is almost identical with that presented in Hart v. State (1914) 181 Ind. 23, 103 N. E. 846, in which a similar indictment was held sufficient, and, upon authority of that case, we hold that the indictment here is sufficient as against a motion to quash.

Nick Pasko was called as a witness by the state. He testified that he had entered a plea of guilty to a charge of burning the building; that he had been badly burned in the fire, but that he did not know anything that occurred at the fire or for some time thereafter; that he was drunk at the time of the fire; and that, because of his injuries and the annoyance of people trying to get statements, and ‘teasing’ him, he was crazy for several weeks after the fire; that he entered a plea of guilty because a police officer had told him to; and that no one could get him out of it, but that he knew nothing of what occurred at the fire. He could not read or write. He was also asked about certain matters preceding the fire. He testified that he was not in Gary on the night of January 26th with the defendant; that he did not see him that night; that he was not in defendant's automobile; that he did not drive to the restaurant; that he was not with the defendant when he bought gasoline in a can at Gary; that defendant had not told him that he bought insurance and wanted the witness to burn the restaurant so he could have the money to open another place; that defendant did not tell him to sprinkle gasoline and fire the building and not to scared. He was asked if he had not made his mark upon a certain statement, and had not answered certain questions in the hospital a few days after the fire, and he answered that he knew nothing about it. The state was then permitted to prove by several witnesses that certain questions had been asked him, and that he had made certain answers; and a statement purporting to have been signed by him, by his mark, was permitted to be introduced in evidence, all indicating that he had said that appellant had procured him to burn the restaurant, and that he had accordingly burned it. In admitting the evidence, the trial court said that it was clearly incompetent upon the merits as against the defendant, but that it was admitted for the purpose of impeaching the witness. Section 562, Burns' Ann. St. 1926, provides: ‘The party producing a witness shall not be allowed to impeach his credit by evidenceof bad character, unless it was indispensable that the party should produce him, or in case of manifest surprise, when the party shall have this right; but he may, in all cases, contradict him by other evidence, and by showing that he has made statements different from his present testimony.’ His written statement contradicted his testimony last detailed. It is true that it contained some matter, concerning which he did not give testimony at the trial, in relation to his being taken to various hospitals by the defendant, but the defendant testified to the same facts substantially, and he could not have been harmed by this. The evidence was clearly competent, for the purpose of contradicting the witness, under the last clause of the statute quoted. The only requirement is that the witness shall have testified to facts prejudicial to the party producing him upon some material issue. His testimony last detailed was material to the issue and prejudicial to the state. The statement was properly admitted. Appellant complains because the questions and answers contained in the statement were repeated before numerous witnesses, in the presence of the jury, and they were permitted to testify that the questions were asked and the answers made by the witnesses. We cannot say that this was prejudicial error, although it was not proper practice. It would have been better practice to permit the state to prove, by numerous witnesses, that appellant had made statements, which were reduced to writing and which he signed, all for the purpose of authenticating the signed statement and as a basis for its admission in evidence.

The chief of the fire department testified as a witness. He said that when he reached the building it was all afire; that ‘it was easy to see that it was not a natural fire.’ One wall had blown out into the alley, and the back door was blown off. The whole interior was burned. There was no portion that was not on fire. It was a solid mass of fire. The front door was open, with the glass out of it. He said that he saw the defendant at the fire and told him that somebody had set his place on fire. He was then permitted, over the defendant's objection, to testify that, in his opinion as an expert, the fire was of incendiary origin. It was probably harmless, since he had testified to as much before in detailing his conversation with the defendant at the fire. But, since the case may be tried again, we must given consideration to the merits of the question.

The rule governing expert testimony is clearly stated by the Court of Appeals of New York in Dougherty v. Milliken (1900) 163 N. Y. 527, 57 N. E. 757, 759,79 Am. St. Rep. 608, as follows: ‘To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If, in such cases, the jury, with all the facts before them, can form a conclusion thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. The distinction between these two kinds of testimony is apparent. In the one instance the facts are to be stated by the experts, and the conclusion is to be drawn by the...