DeVault v. State

• Decision Date: 24 August 1970
• Docket Number: No. 769S149,769S149
• Citation: 261 N.E.2d 232,254 Ind. 546
• Parties: Harold F. DeVAULT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 232

261 N.E.2d 232

254 Ind. 546

Harold F. DeVAULT, Appellant, v. STATE of Indiana, Appellee.

No. 769S149.

Supreme Court of Indiana.

Aug. 24, 1970.

Bernard M. Tetek, Gerald N. Svetanoff, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant, J. N. Maroules, Sonia Moles and John Balenovich were charged by indictment in the Criminal Court of Lake County, Indiana, with the crime of conspiracy to commit forgery. The indictment in pertinent part reads as follows:

The Grand Jurors of Lake County, in the State of Indiana, * * *, on their oaths present that on the 19th day of November, 1962, HAROLD F. DeVAULT was the duly elected, qualified and acting Trustee of Calumet Township, Lake County, Indiana; that JERRY N. MAROULES was then and there an owner of an interest in, a proprietor and manager of Public Super Market, Gary, Indiana; that SONIA MOLES and JOHN BALENOVICH were then and there employees of said office of Calumet Township Trustee, and that on said 19th day of November, 1962, all in said County and State aforesaid, they, the said HAROLD F. DeVAULT, JERRY N. MAROULES, SONIA MOLES and JOHN BALENOVICH did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other for the object and with the unlawful and felonious intent to then and there unlawfully, feloniously, falsely and fraudulently Thereafter each of the defendants separately moved for separate trials and the prayer was granted.

make, assist in making, forge, counterfeit, utter, pass and publish as true, [254 Ind. 548] and cause to be falsely made, forged, counterfeited, uttered, passed and published as true a certain record, order and authentic matter of a public nature, towit: a general purchase order for poor relief from said Calumet Township Trustee's office, purporting to have been receipted and signed by one JAMES MIXON to the Public Super Market, Gary, Lake County, Indiana, for the delivery of food and a payment of a sum of money, to-wit: $85.00, for which food said money was to be paid by Calumet Township, Lake County, Indiana, a body politic and corporate in the State of Indiana, which said false, forged and counterfeited and pretended purchase order is of the following tenor, viz: (The purchase order itself set out in the indictment is omitted because of the difficulty of reproducing the same in print) with intent then and there and thereby feloniously, falsely and fraudulently to defraud the said Calumet Township, Lake County, Indiana, said HAROLD F. DeVAULT JERRY N. MAROULES, SONIA MOLES and JOHN BALENOVICH well knowing that the purported signature of the said JAMES MIXON was then and there forged, false and counterfeited and not the true signature of the said JAMES MIXON, and that said food was not in truth and fact delivered to or received by the said JAMES MIXON, as shown on said forged and false poor relief purchase order, then and there being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.'

Thereafter, the defendant DeVault filed a motion to take depositions of his co-defendants Maroules, Moles and Balenovich which petition was granted by the court.

The cause was set for trial with respect to the appellant for October 21, 1968, on which date appellant appeared in person and by counsel, waived arraignment and entered a plea of not guilty.

Trial by jury began on October 21, 1968 and ended on October 22, 1968. At the conclusion of the State's case in chief, the appellant moved for a directed verdict of not guilty which directed verdict the court refused to order. The defendant did not put any witnesses on the stand and rested, and at which time the State rested.

The jury after deliberating returned its verdict, which in pertinent part reads as follows:

'WE, THE JURY, find the Defendant, HAROLD F. DeVAULT, Guilty, and that he shall be fined in the sum of $2,500.00 and be imprisoned in the State Prison for _ _ years.

/s/ Vernon L. Wells

FOREMAN

Filed in Open Court October 22, 1968.'

Thereupon the court ordered that the Probation Department of the court should make a pre-commitment investigation as to said defendant and a written report of such investigation be filed with the court.

Thereafter, on the 31st day of October, 1968, the prosecuting attorney and defendant in person and by counsel appeared in open court, the report of the pre-commitment investigation was submitted to and considered by the court and the court having examined the same, pursuant to the verdict of the jury, rendered judgment to the effect that the defendant be sentenced and committed to the custody and control of the Warden of the Indiana State Prison for a period of not less than two (2) nor more than fourteen (14) years from said date, that he make his fine to the State of Indiana in the penal sum of $2500.00 and that he pay the costs of the prosecution. The court further found the defendant to be sixty (60) years of age. Thereupon the Appellant's motion for a new trial consists of eleven pages of record and, therefore, in the interest of brevity only the heading of the separate paragraphs of the grounds are shown here. Ground One reads as follows:

defendant moved the court to whthhold execution of the sentence that the defendant might file appropriate motions for an appeal, which motion was by the court sustained and the execution judgment withheld pending the filing of the motions of the defendant.

'Misconduct on the part of Juror, JOHN F. SMITH, as evidenced by the Affidavits of Janet Pavlaski and Bernard M. Tetek, filed herewith and made a part hereof and marked 'Exhibits 1 & 2', in this, to-wit: Upon questioning by the Court, juror JOHN F. SMITH denied he was ever convicted of a felony.'

Ground Two reads as follows:

'That the verdict of the Jury is not sustained by sufficient evidence.'

Ground Three reads as follows:

'That the verdict of the jury is contrary to law.'

Ground Four reads as follows:

'That error of law occurring at the trial as follows, to-wit:

The Court erred in overruling the objection of the defendant to the following question propounded by the Prosecutor during the direct examination of JERRY N. MAROULES, a witness called on behalf of the State of Indiana and admitting the answer thereto in evidence which question, objection, answer and the ruling of the Court thereon, are in the following words:

* * *.'

Ground Five reads as follows:

'That error of law occurring at the trial as follows, to-wit:

The Court erred in overruling the objection of the defendant to the following question propounded by the Prosecutor during the direct examination of JERRY N. MAROULES, a witness called on behalf of the State of Indiana and admitting the answer thereto in evidence, which question, objection, answer and the ruling of the Court thereon, are in the following words:

* * *.'

Ground Six reads as follows:

The Court erred in overruling the objection of the defendant to the following question propounded by the Prosecutor during the direct examination of JERRY N. MAROULES, a witness called on behalf of the State of Indiana and admitting the answer thereto in evidence, which question, objection, answer and the ruling thereon, are in the following words:

* * *.'

Ground Seven reads as follows:

'That error of law occurring at the trial as follows:

The Court erred in overruling the objection of the defendant * * *.'

This again refers to the overruling of the objection of the defendant and is of the same tenor as Four, Five and Six preceding this objection. Ground Eight reads as follows:

'That error of law occurring at the trial as follows, to-wit: * * *.'

This objection again is of the same tenor as that heretofore set out in grounds numbered Four, Five and Six.

Objection Nine:

'That error of law occurring at the trial as follows, to-wit: * * *.'

This objection again is of the same tenor to that propounded at grounds Four, Five, Six and Seven immediately preceding.

Ground Number Ten reads as follows:

'That the Court erred in overruling defendant's Motion for a finding of not guilty at the close of the State of Indiana's case.'

Following the motion for a new trial a memorandum was filed therewith, which memorandum omitting heading, formal parts and signature reads as follows, to-wit:

'MEMORANDUM

The defendant, HAROLD F. DeVAULT, has assigned as two specifications of his motion for new trial that the verdict of the jury is not sustained by sufficient evidence and that the verdict of the jury is contrary to law. Therefore, pursuant to Rule 1--14B of the Rules of the Indiana Supreme Court, the defendant attaches this memorandum to his motion for new trial specifically pointing out how such evidence is insufficient, and as a result, how the verdict of the jury based upon such evidence is contrary to law. The use of the term 'defendant' in this memorandum shall refer to HAROLD F. DeVAULT.

THE CRIME CHARGED

The defendant was charged and convicted of the crime of conspiracy to commit forgery of a general purchase order for poor relief. Specifically, the defendant was accused of conspiracy with JERRY N. MAROULES, SONIA MOLES and JOHN BALEN (or BALENOVICH) to forge a Calumet Township Trustee purchase order dated November 19, 1962. This was the only unlawful act with which the defendant was charged.

The basic elements of the crime in question here, to-wit, conspiracy to commit forgery, are as follows:

1. Two or more persons must unlawfully conspire and unite with each other; and

2. To commit an unlawful, overt act.

In the case at bar, the State had to prove beyond a reasonable doubt that a conspiracy existed of which the defendant was a party, and that the object of the conspiracy was to commit the unlawful act of forging said general purchase order dated November 19, 1962, as issued to one JAMES MIXON.

THE STATE'S EVIDENCE

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