Ferris v. State

• Decision Date: 21 February 1901
• Citation: 156 Ind. 224,59 N.E. 475
• Parties: FERRIS v. STATE.
• Court: Indiana Supreme Court

156 Ind. 224

59 N.E. 475

FERRIS

v.STATE.

Supreme Court of Indiana.

Feb. 21, 1901.

Appeal from circuit court, Shelby county; Douglas Morris, Judge.

John G. Ferris was convicted of making out and presenting a false and fraudulent claim against a county, and he appeals. Affirmed.A. F. Wray, T. H. Campbell, and Joseph Chez, for appellant. W. L. Taylor, for the State.

HADLEY, J.

Appellant was convicted of making out and presenting to the board of commissioners, for the purpose of securing its allowance, a false and fraudulent claim, in violation of section 2353, Burns' Rev. St. 1894 (section 2205, Rev. St. 1881; section 2205, Horner's Rev. St. 1897). Appellant's motion to quash the indictment, for a new trial, and in arrest of judgment was each overruled. The statute, so far as it gives support to the indictment, is as follows: “Whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct, * * * to the county auditor or the board of commissioners, or other officer of any county, * * * any claim, * * * account, * * * or other evidence of indebtedness, false or fraudulently, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the county treasury, * * * shall be imprisoned,” etc. The indictment charges, in substance, that the appellant, on the 15th day of November, 1899, at said county and state, did then and there unlawfully, feloniously, and designedly, and with intent to cheat and defraud said Shelby county, make out and file in the auditor's office of said county, and cause the same to be entered on the claim docket in said office, and present to the board of commissioners of said Shelby county, a certain false and fraudulent claim against said county for indexing, which said claim is in the words and figures following: “Shelby County, to John G. Ferris, Dr.: To balance on indexing, $89.50,”-the said claim being so made out and presented to said board of commissioners, in manner as above, for the purpose of then and there securing the allowance of the same by said board, and then and there procuring an order on said county for said sum for payment thereof out of the county treasury and from the funds belonging to said county.

The first objection made to the indictment is that it is bad for duplicity, in this: (1) That it is charged that appellant presented the claim to the board of commissioners to secure its allowance, and (2) to procure from the board an order on the county treasury for its payment. The language of the indictment is not justly subject to this objection. The words are, “for the purpose of then and there securing the allowance of the same by such board, and then and there procuring an order on such county for said sum of $89.50 for the payment thereof out of the treasury of such county, and of the funds of said county.” It will be observed that it is distinctly averred that the claim was presented for the purpose of securing its allowance by the commissioners, but it is not even inferentially averred that the presentation was for the purpose of procuring from the commissioners the issuance to him of an order upon the treasury. The gist of the indictment is that appellant undertook to defraud Shelby county by procuring money from its treasury, wrongfully. As his course of procedure he made out a false claim against the county, and presented it to the board of commissioners for allowance. This allowance it was necessary to have before he could proceed further with his scheme, and when procured it became, ipso facto, the duty of the auditor to issue to him a warrant upon the county treasury for its payment out of the county funds. Sections 3, 4, p. 188, Acts 1897. So the plain meaning of the language used is that appellant's purpose in presenting the claim to the commissioners was to secure its allowance, which allowance carried with it the right of appellant to demand and receive from the auditor a warrant upon the county treasury. The further purpose to be attained after allowance of the claim, perhaps, should have been omitted in the interest of good pleading, but it presence does not vitiate the indictment. There is only one substantive act described, and the language employed is only descriptive of different phases of elements of a single wrongful act.

It is insisted that the indictment is bad for duplicity and uncertainty, for the further reason that it is charged therein that the claim presented was both false and fraudulent; the insistence being that a false claim and a fraudulent claim, being distinct offenses, alike amenable to the statute, cannot be laid conjunctively in the same count. This precise question has been decided against appellant by this court in Wilson v. State (at this term) 59 N. E. 380. See authorities there cited. The motion to quash the indictment was properly overruled, and for the same reasons there was no error in overruling appellant's motion in arrest of judgment.

Appellant earnestly and ably insists that the judgment should be reversed for refusal to grant him a new trial: First, because the court put him upon his trial without arraignment or waiver or plea to the indictment. It may be said that, if there was neither arraignment nor plea, there can be no question to decide; for it is already well settled that a trial upon an indictment, without the taking of these preliminary steps by the court, is a trial without an issue, and constitutes such an irregularity as entitles the defendant to a retrial, if the verdict is against him. Tindall v. State, 71 Ind. 314;Weaver v. State, 83 Ind. 289;Shoffner v. State, 93 Ind. 519;Billings v. State, 107 Ind. 54, 6 N. E. 914, 7 N. E. 763. But the record before us shows that the real question arising is quite a different one. We quote: “On June 25, 1900, the following proceedings by the court were had in said cause, to wit: * * * And whereupon comes now the state of Indiana by her prosecuting attorney, Alonzo Blair, and by her assistant counsel, John S. Duncan, and comes also the defendant in person and by his attorneys, and said defendant, being arraigned upon the indictment filed herein against him for ‘presenting a false claim against Shelby county, Indiana, No. 1,754,’ for plea thereto says that he is not guilty; whereupon the state of Indiana, by her attorneys, agrees in open court to separate the witnesses in this cause during the hearing of the same.” Following, it appears that on the same day the trial was entered upon, and on June 28th, the jury returned a verdict of guilty. Before the record was signed by the judge, and on June 30th, the defendant filed “his motion and affidavits” for a new trial. The first reason for a new trial was because the defendant before trial was not arraigned upon the indictment, nor did he waive arraignment, and was not requested to nor did he plead to the indictment, and no plea of not guilty was entered for...