Brunaugh v. The State

• Decision Date: 24 February 1910
• Docket Number: 21,361
• Citation: 90 N.E. 1019,173 Ind. 483
• Parties: Brunaugh v. The State of Indiana
• Court: Indiana Supreme Court

90 N.E. 1019

173 Ind. 483

Brunaugh v. The State of Indiana

No. 21,361

Supreme Court of Indiana

February 24, 1910

From Criminal Court of Marion County (37,154); Vinson Carter Special Judge.

Prosecution by The State of Indiana against Harry P. Brunaugh. From a judgment of conviction, defendant appeals.

Affirmed.

John W Kern, Joseph E. Bell, Michael A. Ryan and John C Ruckelshaus, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and W. H. Thompson, for the State.

OPINION

Jordan, J.

Appellant was charged by indictment with having made out and presented for allowance to the board of public works of the city of Indianapolis a certain false and fraudulent claim in violation of § 2586 Burns 1908, Acts 1905, p. 584, § 675. The indictment is in three counts. A motion by appellant to quash each count was denied and proper exception reserved. There was a plea of not guilty, a trial by jury, and a verdict returned finding him guilty of making out and presenting a false and fraudulent claim for allowance, as charged in the third count of the indictment, and that his age was thirty-seven years. A motion for a new trial was overruled, and an exception reserved. Thereupon the court rendered its judgment that appellant pay a fine to the State of Indiana in the penal sum of $ 100, that he be imprisoned in the Indiana State Prison for the term of not less than two nor more than fourteen years, and that he pay and satisfy all costs.

He appeals to this court, and predicates error on the overruling of his motions (1) to quash the third count of the indictment, (2) for a new trial, and (3) in arrest of judgment.

The statute on which this prosecution is based, after eliminating certain parts thereof not pertinent to this prosecution, may be read as follows: "Whoever, knowing the same to be false or fraudulent, makes out or presents for payment or certifies as correct to * * * the board of commissioners or other officer of any county, or to the treasurer, or other accounting officer of any city or town * * * 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, * * * city or town; and whoever knowing the same to be false or fraudulent, receives payment of any such claim, account * * * or other evidence of indebtedness from the * * * treasurer or other paying officer of any county * * * city or town, shall, on conviction, be imprisoned in the state prison not less than two years nor more than fourteen years and fined not less than ten dollars nor more than one thousand dollars."

While appellant was convicted upon the third count, thereby virtually eliminating in this appeal the first and second counts, still, on account of some of the rulings of the trial court, it may be useful briefly to note the charge as presented by the first and second counts of the indictment. Each of these counts alleges that appellant, at the time and place therein named, feloniously and knowingly made out and presented for allowance to the board of public works, etc., a certain false and fraudulent claim as therein stated. The only substantial difference between the first and third counts is that the former alleged that the number of square yards patched by the Western Construction Company during the month of April, 1907, on its contract with the city of Indianapolis, was 14,253.9 and no more, and that said city was indebted to said company for said work performed in the month of April in the sum of $ 9,407.57. The second count is substantially the same as the third, except that therein it is charged that the work done by the Western Construction Company for the month of April, 1907, under its contract with the city of Indianapolis, amounted to 11,815.9 square yards and no more, and that the amount due from the city for said work was $ 7,798.49.

The third count of indictment charges as follows: "That on March 14, 1907, the defendant, Harry Brunaugh, entered into a certain contract in writing with the Western Construction Company, a corporation organized and acting under and pursuant to the laws of the State of Indiana, under and by which said defendant undertook and agreed to assist said Western Construction Company in procuring a written contract from the city of Indianapolis to repair the asphalt and vulcanite street pavements of the city of Indianapolis on which the guaranty period had expired, or was then about to expire, and in event such contract should be awarded to said Western Construction Company to superintend the work of making such repairs thereunder, for all of which services said Western Construction Company undertook and agreed to pay to said defendant, and said defendant undertook and agreed to receive as his compensation therefor, a certain portion of the profits realized by said company under said contract; that thereafter, to wit, on or about March 20, 1907, said contract for making such repairs was awarded to said Western Construction Company, and thereupon said Western Construction Company did enter into its certain contract in writing with said city of Indianapolis, by and through the board of public works of the city of Indianapolis, to repair the asphalt and vulcanite street pavements of the city of Indianapolis on which the guaranty period had expired, or was then about to expire, undertaking to use Bermudez Pitch Lake Asphalt in making such repairs, for the sum of sixty-six cents per square yard, as might be required and directed by the city of Indianapolis, for which work said city of Indianapolis undertook and agreed to pay said Western Construction Company at the price before named; that thereafter, to wit, on or about April 3, 1907, said Western Construction Company entered upon the performance of its said contract with said city of Indianapolis, for the making of such repairs; and said defendant, Harry Brunaugh, entered upon the work of superintending the making of such repairs, as required and provided in said contract so entered into between himself and said Western Construction Company, and continued to perform such work during April, May, June and July, 1907; that after the execution of said contract by and between said Western Construction Company and said city of Indianapolis for making such repairs, said city did, prior to April 30, 1907, require and direct said Western Construction Company to make repairs under said contract upon the following streets of the city of Indianapolis, included in said contract, to wit: * * * that said Western Construction Company did, under and pursuant to said contract and such requirements and directions, make repairs on said streets in said city during the month of April, 1907; that thereafter, on May 10, 1907, at and in the county of Marion and State of Indiana, said Harry Brunaugh, while in the employ of the Western Construction Company as aforesaid, assuming and pretending to make a true statement of the amount of all the surface of such repairs so made by said Western Construction Company during said month of April, 1907, under its contract with said city, and the amount due said company on account thereof, did then and there unlawfully, feloniously, knowingly and designedly, with intent to cheat and defraud the city of Indianapolis, make out and present to said board of public works of said city of Indianapolis, for the purpose of procuring the allowance of the same by said board of public works, a certain false and fraudulent claim against said city of Indianapolis, wherein the amount of the surface of such repairs so made by said company under said contract during the month of April, 1907, was stated as 16,691.9 square yards, and the amount due to said Western Construction Company on account thereof was stated as $ 11,016.65, which sum was therein stated and alleged to be justly due and owing from said city of Indianapolis to said Western Construction Company under said contract, and was due and unpaid, which claim was verified by the oath of George W. Baxter, cashier of said company; that the amount of the surface of such repairs actually made by said construction company under said contract during the month of April, 1907, was very much less than the 16,691.9 square yards stated in said claim, the exact number of square yards of such repairs so made is to said grand jurors unknown; and that the amount due said Western Construction Company on account thereof was very much less than said $ 11,016.65, the amount stated in said claim, the exact amount due on account of said repairs is to the grand jurors unknown; that at the time said Brunaugh made out and presented said false and fraudulent claim to said board of public works he well knew that the number of said square yards stated in said claim as 16,691.9 square yards was greatly in excess of the amount of square yards of surface of the repairs so made in said streets by said company, under its contract with said city, during the month of April, 1907, and that the city of Indianapolis was not indebted to said Western Construction Company for such repairs so made by it during the month of April, 1907, in said sum of $ 11,016.65, but was indebted therefor in a very much less amount, contrary to the form of the statute," etc.

The first objection urged against the sufficiency of the third count of the indictment by appellant's counsel is that it does not allege that the board of public works of the city of Indianapolis is an accounting officer of that city, the contention being advanced that the city controller is the only accounting officer that comes within the meaning of the statute on which this prosecution is...