Clevenger v. State

• Decision Date: 26 November 1919
• Docket Number: 23,514
• Citation: 125 N.E. 41,188 Ind. 592
• Parties: Clevenger v. State of Indiana
• Court: Indiana Supreme Court

125 N.E. 41

188 Ind. 592

Clevenger v. State of Indiana

No. 23,514

Supreme Court of Indiana

November 26, 1919

From Clay Circuit Court; George W. Brill, Special Judge.

Prosecution by the State of Indiana against Earl L. Clevenger. From a judgment of conviction, the defendant appeals.

Reversed.

White & Haymond and Bernard M. Robinson, for appellant.

Ele Stansbury, Attorney-General, Dale F. Stansbury and W. L Slinkard, for the state.

OPINION

Lairy, J.

Appellant was charged by affidavit and convicted in the Clay Circuit Court of a crime defined by § 2425 Burns 1914, Acts 1905 p. 584, § 519. The section cited defines two offenses. The first part of the section makes it a felony for any person to pay any money or to deliver anything of value to any persons holding certain offices named therein, for the purpose of obtaining any contract for the construction of certain public buildings and other works of a public nature named therein, or for the performance of any work or the furnishing of any material to any state, county, town, or city, over which such person has any jurisdiction. Appellant was charged and convicted of the offense defined by the last part of the section which provides in substance that any person who, having any such contract shall pay or agree to pay to any of the officers or persons above named any money, percentage, reward, drawback, premium or profits on such contract, on conviction, shall be fined not less than $ 300 nor more than $ 5,000 and be imprisoned in the state prison not less than two years nor more than fourteen years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

The affidavit charged that, at the time mentioned therein, Carl A. Biller was the legally elected and acting township trustee of Posey township in Clay county, Indiana, and that on or about the day of June, 1917, as such trustee, Carl A. Biller entered into a contract with Earl L. Clevenger, agent of the Hoosier Warming and Ventilating Company, to repair the heating furnaces in the township high school building near Staunton, in said Posey township for said school township. It was further charged in the affidavit that on or about January 23, 1918, in the county of Clay and the State of Indiana, the said Earl L. Clevenger having said contract as aforesaid did then and there, unlawfully, feloniously and corruptly pay to said Carl A. Biller, trustee, as aforesaid, forty dollars lawful money of the United States of America as a percentage, reward, drawback, premium and profit on such contract, contrary to the form of the statute.

The sufficiency of the affidavit was questioned by a motion to quash and also by a motion in arrest of judgment, both of which motions were overruled.

The first objection urged to the affidavit is that it does not state with sufficient certainty that the contract on which the money was alleged to have been paid was a contract of the trustee with appellant. The charge is that Carl A. Biller, as trustee, entered into the contract with Earl L. Clevenger, agent of the Hoosier Warming and Ventilating Company. The words following the name of appellant in the last sentence are regarded as descriptio personae, and cannot be construed to mean that appellant, as agent of the company named, made the contract for and on behalf of his principal. State v. Simpson (1905), 166 Ind. 211, 76 N.E. 544, 1005; Allen v. State (1876), 52 Ind. 486; Weaver v. State (1856), 8 Ind. 410. The affidavit is sufficient to charge that appellant entered into the contract described in his personal capacity, and that, while he had such contract, he paid to Biller, as trustee, forty dollars with the intent and purpose stated in the affidavit.

A further objection is made to the affidavit on the ground that it fails to charge that appellant knew, on January 23, 1918, the date on which the money was alleged to have been paid, that Biller was trustee at that time. When all of the allegations of the affidavit are considered together, it becomes apparent that appellant must have known and did know the official character of Biller at the time the money was alleged to have been paid. The affidavit must be held to be sufficient. State v. McDonald (1886), 106 Ind. 233, 6 N.E. 607.

The other questions presented arise on the ruling of the trial court on the motion for a new trial. In regard to the sufficiency of the evidence to sustain the verdict, appellant takes the position that all the evidence, without dispute, shows that the contract for repairing the heating furnaces upon which it is alleged the forty dollars was unlawfully paid was entered into between Biller, as trustee, and the Hoosier Warming and Ventilating Company, by its agent, Roy Alexander; and that appellant, at the time the money is alleged to have been paid, had no contract with the trustee in his official capacity within the meaning of the statute. The testimony of Alexander and Biller strongly sustain appellant's position, but it cannot be said that there is a total want of evidence to sustain a finding by the jury that the contract was with appellant. There is evidence to show that appellant was engaged in the plumbing business on his own account, and that a large amount of the material for making the repairs, which was furnished by W. H. Johnson and Sons Company, of Indianapolis, was shipped to appellant at Staunton, and was charged to his individual account, which he paid. These circumstances were explained by evidence showing that he was, at the time, president and general manager of the Hoosier Warming and Ventilating Company, and that all goods sold by W. H. Johnson and Sons Company to that company were charged to appellant personally because he had credit with W. H. Johnson and Sons Company. There is also evidence to show that checks given for labor performed in making the repairs were signed by appellant, and that the bill rendered for material and labor, and introduced in evidence, showed that the account was in favor of Earl L. Clevenger, plumber, and that the items therein were charged to C. A. Biller, trustee. It was the province of the jury to consider the circumstances proved, and the explanations made in connection with the direct testimony of the witness bearing on the question, and decide whether appellant did or did not have the contract for repairing the furnaces as alleged in the affidavit. The jury decided, and the trial judge, who heard the evidence and saw the witnesses, has decided that the evidence was sufficient to sustain the verdict on the point under consideration. It will be presumed that the trial court considered all the evidence and weighed it in reaching the conclusion stated. This court cannot weigh evidence. As the evidence is conflicting, the verdict cannot be set aside on the ground stated.

The main facts necessary to establish the guilt of the defendant were: (1) That he had a contract with Biller as trustee of Posey township for the furnishing of material and the performance of work for that township; (2) that while he had that contract he paid to Biller forty dollars or some other amount of money in Clay county, Indiana, within two years prior to the date on which that affidavit was filed, and (3) that the money so paid was a percentage, reward, drawback, premium or profit on such contract.

The witness Biller testified that appellant paid him forty dollars at his office in Staunton on January 22, 1918, at the time witness paid the balance on the heating repairs, and that appellant said that the balance due witness was ninety-five dollars, which he would pay when witness paid for the pump which had been ordered. This was the only evidence as to the payment of any money by appellant to Biller in Clay county, Indiana. Appellant denied making this payment, and further stated that on the day the settlement was made he and two other men, Limbaugh and Gordon, went from the Davis Hotel in Brazil, Indiana, directly to the office of Biller in Staunton; that it was a very cold day; that both these men went into the office with him and remained there during the time...