Boos v. State

CourtSupreme Court of Indiana
Citation105 N.E. 117,181 Ind. 562
Docket Number22,548
PartiesBoos v. State of Indiana
Decision Date30 April 1914

From Huntington Circuit Court; U.S. Lesh, Special Judge.

Prosecution by the State of Indiana against Jacob Boos. From a judgment of conviction, the defendant appeals.


C. W Watkins and R. A. Kaufman, for appellant.

Thomas M. Honan, Attorney-General, and Thomas H. Branaman, for appellee.


Myers, J.

Indictment against appellant and another for alleged sale of intoxicating liquor to a minor. The indictment was returned February 8, 1913, and charged the alleged unlawful sale to have been made on or about December 14, 19012. There was no motion to quash. There was a motion in arrest. The errors assigned are, that the indictment does not state a public offense, and in overruling the motion in arrest, and the motion for a new trial.

This cause having originated since the enactment of 1911 (Acts 1911 p. 415, § 348 Burns 1914), an assignment of error on appeal in a criminal case that the indictment does not state a public offense, can be of no avail. Hay v. State (1912), 178 Ind. 478, 98 N.E 712; Robinson v. State (1912), 177 Ind. 263, 264, 265, 97 N.E. 929. The objection made to the indictment is, that it charges the commission of an offense at an impossible time, that is, that there could be no offense at a possible time, but so remote in the future. If the question had been raised by a proper motion to quash below, it would have been error to overrule it, under the following cases, Terrell v. State (1905), 165 Ind. 443, 75 N.E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. 244, 6 Ann. Cass. 851; Trout v. State (1886), 107 Ind. 578, 8 N.E. 618; State v. Noland (1867), 29 Ind. 212.

The question under a motion in arrest of judgment is, whether it has the same effect under the code, as a motion to quash, or whether after verdict a different question arises. We have cases under statutes prior to 1881 and the subsequent amendments, which hold that whatever will quash an indictment will arrest a judgment. Burroughs v. State (1880), 72 Ind. 334; Arbintrode v. State (1879), 67 Ind. 267, 33 Am. Rep. 86; 1 Chitty, Crim. Law (4th ed.) 442; 2 Chitty, Crim. Law (4th ed.) 662. These cases seem to be grounded on the common law rule hereafter adverted to, that the rules of civil procedure do not apply to criminal actions, without having in mind the provisions of the criminal code, and prior decisions, as to the applicability of the rule in both character of causes, as well as the limitations of a motion in arrest, under the code. The civil code does not govern appeals in criminal causes, but the criminal code provides for the application of the rules of pleading and practice in civil actions which are applicable, when no special provision is made in the former, § 2231 Burns 1914, Acts 1905 p. 584, § 344, and expressly adopts the definitions and terms of the civil code, so far as applicable, and it is fair to presume that the criminal code was enacted in view of the settled principles of the common law, and the usages and general practice and pleading under the code, except as modified by the latter. Keefer v. State (1910), 174 Ind. 588, 92 N.E. 656. It is held that a motion in arrest of judgment in a criminal case, waives a motion for a new trial, in analogy to the rule in a civil action. Turner v. State (1910), 175 Ind. 1, 93 N.E. 225; Barnett v. State (1911), 175 Ind. 215, 93 N.E. 226. Prior to the declaration of the rule in Henderson v. State (1878), 60 Ind. 296, it had been the rule that the sufficiency of an indictment could not be attacked for the first time in this court, and in that case it was held that it could be done, on the ground of the analogy between the civil and criminal codes in that particular, or in the language of that case, "as in the case of complaints in civil proceedings". At common law, a motion in arrest in a criminal cause, performs the same office as a demurrer, and whatever would be fatal under the latter, would be fatal under a motion in arrest. 3 Chitty, Crim. Law (4th ed.) 662, 663; 2 Bishop, Crim. Proc. (2d ed.) § 1286; Archbold, Plead. and Ev. 149. But at common law, the rule in civil cases that a complaint may be aided by a verdict, did not obtain in criminal cases. 3 Chitty, Crim. Law (4th ed.) 662. It appears also, that criminal proceedings were not aided by statutes of jeofails and amendments. 3 Blackstone, Comm. 379, 407, 439; Wilder v. Gilman (1883), 55 Vt. 503; Ex parte Bain (1887), 121 U.S. 1, 6, 9, 7 S.Ct. 781, 30 L.Ed. 849. Also, a judgment might be arrested for causes other than those appearing on the face of the record, or insufficiency of the indictment. 3 Chitty, Crim. Law (4th ed.) 663, 664; 2 Bishop, Crim. Proc. (2d ed.) § 1285. By our code, the motion in arrest is limited in its scope. § 2159 Burns 1914, Acts 1905 p. 584, § 283.

It is a settled rule of the common law, that intendment or presumption after verdict, would cure a complaint which would be bad on demurrer in civil actions, and withstand a motion in arrest of judgment. "The extent and principle of this rule of aider by verdict is thus explained in a modern decision of the Court of King's Bench. 'Where a matter is so essentially necessary to be proved, that had it not been given in evidence, the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by verdict; and where a general allegation must, in fair construction, so far require to be restricted, that no judge or jury could have properly treated it in an unrestrained sense, it may reasonably be presumed, after verdict, that it was so restrained at the trial'." Stephen, Pleading (9th Am. ed.) 148, citing, Jackson v. Pesked (1813), 1 Miss. 234. See, also, Smock v. Harrison (1881), 74 Ind. 348; Home Ins. Co. v. Duke (1881), 75 Ind. 535. Mr. Chitty states the proposition thus, "The doctrine upon this subject is founded upon the common law, and is independent of any statutory enactments. The general principle upon which it depends appears to be, that where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict." 1 Chitty, Pleading (16th Am. ed.) 705; Gould, Pleading Ch. 10, § 11 et seq.; Bliss, Code Pleading (3d ed.) § 438. In this State, a distinction is made between a cause of action imperfectly stated, and no cause of action stated, and this would appear to be the common-law distinction. Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N. E. 99; Peoria, etc., R. Co. v. Attica, etc., R. Co. (1900), 154 Ind. 218, 56 N.E. 210; Robinson v. Powers (1891), 129 Ind. 480, 28 N.E. 1112; Colchen v. Ninde (1889), 120 Ind. 88, 22 N.E. 94. There are cases holding that a pleading or indictment may be cured by verdict, when it would be subject to demurrer, or motion to quash. Domestic Block Coal Co. v. DeArmey, supra; Woodsmall v. State (1913), 179 Ind. 697, 102 N.E. 130; Smith v. Freeman (1880), 71 Ind. 85; Dawson v. State (1879), 65 Ind. 442; Donellan v. Hardy (1877), 57 Ind. 393; McGuire v. State (1875), 50 Ind. 284. In others, it is held that a cause of action imperfectly stated, cannot be reached by demurrer, but must be reached by motion, owing to the fact that we have no special demurrer in our practice. Baltimore, etc., R. Co. v. Slaughter (1906), 167 Ind. 330, 79 N.E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. 503; Smith v. Freeman, supra; Graham v. Martin (1878), 64 Ind. 567. The general demurrer at common law excepted to the sufficiency of a pleading "in general terms, without showing the nature of the objection," while a special demurrer added to this a "specification of the objection." Thus a general demurrer went to the substance, and a special demurrer to the form of the pleading. Stephen, Pleading (9th Am. ed.) 140, 141.

Our code practice is closely allied to the general demurrer at common law, limited, however, to the statutory causes. These two lines of cases seem not to have noted the distinction between such defects in pleading as cannot be reached by demurrer, and do not need the aid of a verdict, and those which are insufficient to withstand demurrer and may be aided by verdict. It might be difficult as an abstract proposition, to see how a pleading insufficient on demurrer for want of facts, can be cured by verdict, but the propositions are perhaps reconcilable upon the analysis pointed out in the language of Chitty and Stephen. It has been uniformly held, prior to the enactment of 1911 (Acts 1911 p. 415, § 345 Burns 1914), that the defect was not waived by a failure to demur, and might be raised by an independent assignment of error, and yet in many cases it was held that a complaint insufficient on demurrer, and the objection not waived by failure to demur, was materially modified by the doctrine of intendment, or presumption after verdict, from which waiver arises. Baltimore, etc., R. Co. v. Slaughter, supra, and cases cited; Peoria, etc., R. Co. v. Attica, etc., R. Co., supra; Nichols v. State (1891), 127 Ind. 406, 26 N.E. 839; Smith v. Freeman, supra; Galvin v. Woollen (1879), 66 Ind. 464; Wiles v. Lambert (1879), 66 Ind. 494. Under the reasons assigned by Mr. Chitty and Mr. Stephen, the basis for these decisions seems...

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