Chambers v. State

• Decision Date: 26 October 1937
• Docket Number: 26793.
• Citation: 10 N.E.2d 735,212 Ind. 667
• Parties: CHAMBERS v. STATE.
• Court: Indiana Supreme Court

10 N.E.2d 735

212 Ind. 667

CHAMBERS v. STATE.

No. 26793.

Supreme Court of Indiana

October 26, 1937

Appeal from Carroll Circuit Court; E. E. Pruitt, Judge.

Robt. L. Hanna, of Delphi, and Jenkines & Jenkines, of Logansport, for appellant.

Omer Stokes Jackson, Atty. Gen., and A. J Stevenson, Asst. Atty. Gen., for the State.

TREMAIN Judge.

Appellant was charged by affidavit with perjury, alleged to have been committed in Carroll county, Ind., on the 29th day of November, 1935. A motion to quash was filed upon the grounds (1) That the facts stated did not constitute a public offense; and (2) the offense was not stated with sufficient certainty. The motion was overruled, trial by jury conviction, and judgment.

The affidavit charged that on the date and in the circuit court of the state and county above named, a certain action was pending against appellant charging the offense of automobile banditry; that at the trial thereof the state introduced in evidence a written confession executed by appellant, attested by three witnesses, in which he stated that on the night of April 21, 1935, in company with other confederates, he went to the farm of one Cook and loaded 16 of Cook's hogs onto a truck, drove to a market, and sold them for $301.10. It is averred that during the trial appellant was sworn as a witness and testified in his own behalf; that he denied that he executed said written instrument voluntarily and freely that it was executed under duress and threats of bodily injury, and upon a promise that he would be given a suspended sentence; that his testimony upon said trial was willfully and falsely given; that he testified that he was not guilty and would not have signed said written instrument except for such threats and promises, the details of which are fully set out in the affidavit. It is further alleged that the appellant's testimony upon said trial was not true, and by reason of such willful, false, and corrupt testimony he was guilty of perjury.

The correctness of the ruling of the court upon the motion to quash is assigned as error. It is claimed that the affidavit is bad for duplicity and placed an undue burden upon the appellant by reason of the fact that the alleged written confession was set out in full in the body of the affidavit. It is contended that the alleged confession constituted an improper historical background, and bore no relation to the crime of perjury; that the alleged confession was nothing more than an item of evidence to be introduced upon the trial in its proper and due course.

The affidavit sufficiently charges that the appellant was sworn as a witness and testified in his own behalf upon the charge of stealing hogs; that in such testimony he made false statements concerning the circumstances under which he signed the confession. The several false statements, embraced in the affidavit, were the basis for the charge of perjury. This fact does not make the affidavit bad for duplicity. In Brogan v. State (1927) 199 Ind. 203, 156 N.E. 515, 516, a similar question was before the court. In passing upon the question, the court used the following language: 'It is claimed by appellant that the amended affidavit alleged four distinct offenses, and therefore was bad for duplicity. An indictment or affidavit is not bad for duplicity for joining in one count, as one offense, offenses committed at the same time, by the same person, as parts of the same transaction, and subjecting defendant to the same punishment.'

This court considered the question in Selby v. State (1904) 161 Ind. 667, at page 672, 69 N.E. 463, 465, and quoted from Bishop's Criminal Procedure, Vol. 1 (3d Ed.) § 436: 'Now if, in a single transaction, he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction 'and' where the statute has 'or,' and it will not be double, and it will be established at the trial by proof of any one of them.'

This is a rule generally recognized and supported by many authorities, some of which are Woodward v. State (1926) 198 Ind. 70, 152 N.E. 277; Knopf v. State (1882) 84 Ind. 316; Davis v. State (1885) 100 Ind. 154; Myers v. State (1907) 169 Ind. 403, 82 N.E. 763. The affidavit charges but one offense, perjury, and is not bad for duplicity.

The appellant contends that the affidavit is objectionable for the reason that the alleged written confession is incorporated therein. This court on several occasions has held that an indictment or affidavit is not subject to a motion to quash because it contains evidentiary matters; that such matters will be treated as surplusage, and are not prejudicial to the rights of the defendant, unless they are wholly foreign to the subject-matter of the indictment...