Ford v. State

• Decision Date: 29 November 1887
• Docket Number: 13,655
• Citation: 14 N.E. 241,112 Ind. 373
• Parties: Ford v. The State
• Court: Indiana Supreme Court

14 N.E. 241

112 Ind. 373

Ford v. The State

No. 13,655

Supreme Court of Indiana

November 29, 1887

From the Hamilton Circuit Court.

The judgment is reversed, and the cause remanded, with instructions to grant a new trial.

C. L Henry, H. C. Ryan, W. R. Pierse and C. B. Gerard, for appellant.

J. F Neal, Prosecuting Attorney, M. S. Robinson and J. W. Lovett for the State.

OPINION

Zollars, J.

Appellant was jointly indicted in the Madison Circuit Court with John Cottrell and James T. Ford. In the first count of the indictment, the three parties are charged with the burning of a mill, the property of James and William Woodward. In the second count, Cottrell is charged with burning the mill, and the Fords are charged as accessories before the fact.

Upon a change of venue, appellant was tried and convicted in the Hamilton Circuit Court. He questioned the sufficiency of the indictment by a motion to quash, and by a motion in arrest of judgment. He assigns as errors in this court the overruling of those motions and the overruling of his motion for a new trial.

Under those assignments, he makes the points that the record does not show that the indictment was returned by the grand jury into open court, and that it does not show that the grand jury was legally constituted.

There are two sufficient answers to the points thus made. In the first place, the record sufficiently shows both facts which appellant contends it does not show; and in the second place, the questions which he seeks to make are not so presented by the record as to be available here. Following the title of the cause, which is as follows,

State of Indiana v. John Cottrell, George Ford, James T. Ford.

No. 685.

and other entries, there is this statement in the record: "And be it further remembered that afterward, to wit, on the 20th day of October, 1886, the same being the 9th judicial day of the October term of the Madison Circuit Court, * * the following proceedings were had in said cause, to wit: Come now the grand jury in charge of their bailiff, and all being present, they find, render and return as true bills of indictment, properly signed by David W. Wood, prosecuting attorney of the 24th judicial circuit, Indiana, and endorsed by William Roach, foreman of said grand jury, bills of indictment which are marked filed this 20th day of October, 1886, Charles A. Henderson, clerk, and numbered 681 to 686 inclusive; and said grand jury also recommended that B. Seward, now in jail, charged with assault and battery with intent to kill, be discharged. And the court, being well advised in the premises, orders said B. Seward to be released and discharged from the county jail, * * * and the grand jury retire for further deliberation."

Upon the same day, and without any question as to the proper return of the indictment, appellant, as shown by the same entry of the court's proceedings, procured a change of venue of the cause from the county.

With the presumptions that are indulged in favor of the regularity of legal proceedings, the foregoing shows, in an entirely sufficient and satisfactory manner, that the indictment was returned into open court.

The certificate of the clerk of the Madison Circuit Court shows that he forwarded to the clerk of the Hamilton Circuit Court the proper transcript of the proceedings in the cause in the Madison Circuit Court, and, also, the original indictment and papers in the cause against appellant.

The record also shows that the clerk of the Hamilton Circuit Court filed the indictment in his office on the 9th day of November, 1886, and endorsed that filing on the back of the indictment.

A copy of the indictment thus forwarded and filed, and upon which appellant was tried, is set out in the record. Upon the back of it is the number 685, and the file-mark as of Oct. 20th, 1886, in open court, by the clerk of the Madison Circuit Court, etc.

The indictment, amongst other things, contains this: "The grand jury within and for the county of Madison and State of Indiana, duly and legally empanelled, charged and sworn to inquire into all felonies," etc.

It is well settled that this court will indulge all reasonable presumptions in favor of the regularity and validity of proceedings in the lower courts, and will not reverse a judgment unless the record affirmatively shows that material errors intervened in such proceedings. Indulging that presumption, and acting upon that rule, it must be held that it sufficiently appears from the record here that the indictment was found and returned by a legal and duly qualified grand jury.

The following, amongst other cases that might be cited, fully sustain our conclusions here, and thus far stated: Holloway v. State, 53 Ind. 554; Bailey v. State, 39 Ind. 438; Willey v. State, 46 Ind. 363; Long v. State, 46 Ind. 582; Powers v. State, 87 Ind. 144; Stout v. State, 93 Ind. 150; Henning v. State, 106 Ind. 386, 6 N.E. 803; Epps v. State, 102 Ind. 539, 1 N.E. 491; Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441.

In some of our cases, especially in some of the earlier cases, it was held that a motion to quash an indictment, or a motion in arrest of judgment, should be sustained where the record does not show the return of the indictment into open court by a competent grand jury, duly empanelled. But in the later, and, we think, the better considered cases, it has been held that a motion to quash or a motion in arrest of judgment reaches the indictment, and nothing more, and that if the defendant seeks to make any question as to the qualification of the grand jury, or any member of the panel, or any question as to whether the grand jury was properly empanelled, or as to whether the indictment was properly returned into open court, he must do so by a proper plea, and that he can not reach those questions by a motion to quash the indictment or in arrest of judgment. Padgett v. State, 103 Ind. 550, 3 N.E. 377; Mathis v. State, 94 Ind. 562; Wills v. State, 69 Ind. 286. See, also, Willey v. State, supra; Bell v. State, 42 Ind. 335, and cases there cited.

Our statute provides that no indictment shall be deemed invalid, or quashed, for certain defects, amongst which is, for an omission to allege that the grand jury were empanelled, sworn or charged. R. S. 1881, section 1756.

In section 1759, the causes for which an indictment may be quashed are stated, but none of them refer to the empanelling or qualification of the grand jury, or the returning of the indictment into court.

The statute creating and defining the crime of arson provides that "Whoever wilfully and maliciously burns or attempts to burn any dwelling-house or other building, finished or unfinished, occupied or unoccupied, whether the building be used or intended for a dwelling-house or for any other purpose, * * * being the property of another, * * * is guilty of arson," etc.

The indictment charges the burning of a "certain mill-house, being then and there of the value of ten thousand dollars, and being then and there the personal property of other persons, to wit, the property of James R. Woodward and William Woodward."

It is contended by appellant, that the description of the property burned as a "mill-house" is not sufficiently certain, and that the indictment should have been quashed for uncertainty.

While the indictment is not so certain in the description of the property burned as it might have been made, we do not think that the uncertainty is such as would justify the court in quashing it.

In passing upon indictments, the courts of this State are to keep in view our statutes which are intended to dispense with many of the technical rules of the common law in criminal procedure.

Section 1755 provides, amongst other things, that an indictment is sufficient if the offence is clearly set forth in plain and concise language, and with such a degree of certainty that the court may pronounce judgment, upon a conviction, according to the right of the case.

Section 1756 provides that an indictment shall not be quashed for certain defects specified, amongst which is, "For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

"Mill-house" is not the most happy description of a building enclosing mill machinery, or used for milling purposes, but any one understands from that description that such a building is meant. The word "house" clearly means a building, in the ordinary use of the word, and such building or house is not necessarily the habitation of man or beast. There are slaughter-houses, packing-houses, smoke-houses, etc., indicating houses in which animals are slaughtered, meats packed and smoked, etc. So, a "mill-house," we think, would readily be understood to be a building or house used for milling purposes. See Dugle v. State, 100 Ind. 259.

A "mill-house" may, or it may not, be personal property. The statement in the indictment that the "mill-house" is the personal property of Woodward is a conclusion of law, rather than the statement of a fact, and, for that reason, may be regarded as surplusage, not affecting the indictment one way or the other. Section 1756, supra; State v. McDonald, 106 Ind. 233, 6 N.E. 607. And even though the property, the mill-house, may have been shown by the evidence, as contended by appellant, to be real estate, that did not constitute a fatal variance. Nor is it a fatal variance that the evidence shows that the property burned was a grist-mill or mill building. The building was a mill-house, as well as a grist-mill or mill building.

Longacker one of the State's witnesses, having testified that in the fall of 1884 he had conversations with James T. Ford, one of the parties jointly indicted...