Foust v. State
| Decision Date | 18 May 1928 |
| Docket Number | 24,406 |
| Citation | 161 N.E. 371,200 Ind. 76 |
| Parties | Foust et al. v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT---Particularity in Criminal Pleading---Purpose of Rule.---The rule requiring particularity in criminal pleading is to give identity and certainty to the transaction upon which the pleading is based, thereby enabling the accused to plead his conviction or acquittal in bar of another prosecution for the same offense, and when this is done, the rule is satisfied. p. 79.
2. INDICTMENT AND AFFIDAVIT---Surplusage and Repugnant Allegations---Effect on Indictment or Affidavit.---The statute expressly provides that no indictment or affidavit shall be deemed invalid nor set aside or quashed for any surplusage or repugnant allegation therein where there is sufficient matter alleged to indicate the crime and person charged (2225 Burns 1926). p. 79.
3. INDICTMENT AND AFFIDAVIT---Certainty Required in Criminal Pleading.---Under the Code of Criminal Procedure (2224 Burns 1926), no more certainty is required in criminal pleadings than in civil; all that is required is that the allegations be certain to a common intent. p. 80.
4. INDICTMENT AND AFFIDAVIT---Test of Sufficiency.---The true test of an indictment or affidavit is whether the material averments thereof are stated with sufficient certainty to advise the defendant of the nature and character of the charges against him. p. 81.
5. LARCENY---Indictment---Description of Property---An indictment or affidavit charging larceny should state the particular kind of property charged to have been stolen, but it is not necessary to so specifically describe the property as to identify it from other property of the same class. p 81.
6. LARCENY---Proof Necessary---Particularity in Description of Property.---Where a particular description of the property stolen is given in an indictment or affidavit for larceny the charge must be proved substantially as laid. p. 81.
7. LARCENY---Of Rugs---Motion to Quash Affidavit---Description of Sizes Surplusage.---In a prosecution for the larceny of rugs of different sizes, it was not necessary to name the sizes of the rugs in the indictment or affidavit, and, in considering a motion to quash, the descriptions of the sizes may be treated as surplusage. p. 82.
8. LARCENY---Of Rugs---Description of Sizes---Effect on Affidavit.---Particular descriptions of the sizes of rugs charged to have been stolen would not render an affidavit charging the larceny of rugs of various sizes insufficient and a motion to quash was properly overruled. p. 82.
9. LARCENY---Of Rugs---Testimony as to Sizes---Admissibility.---In a prosecution for the larceny of rugs of various sizes, testimony by the owner of the rugs as to the sizes thereof was admissible, and the court properly overruled objections thereto, although the sizes were imperfectly described in the affidavit charging the offense. p. 82.
10. CRIMINAL LAW---Hearsay Evidence---Question Calling for what Witness had "Heard."---In a criminal prosecution the court properly sustained an objection to a question on cross-examination of a witness asking her if she had "heard" that a certain building or apartment was left unlocked, as the question called for hearsay testimony. p. 83.
11. CRIMINAL LAW---Exclusion of Testimony---Offer to Prove Necessary.---No error is presented on appeal as to the exclusion of evidence where appellant made no offer to prove what the witness' testimony would be if permitted to answer the question, as that is an essential step to the presentation of such questions on appeal. p. 84.
12. CRIMINAL LAW---Extent of Cross-examination---Discretionary with Trial Court.---The cross-examination of a witness rests in the sound discretion of the trial court and only where there has been an abuse of discretion will the judgment of the trial court be reversed because of error therein. p. 84.
13. WITNESSES---Cross-examination---Tending to Impair Credibility.---Any fact tending to impair the credibility of a witness by showing his interest, bias, ignorance or motives, or that he is depraved in character, may be shown in cross-examination, but the extent to which such cross-examination may be carried is within the sound discretion of the court. p. 84.
14. CRIMINAL LAW---New Trial---Newly-discovered Evidence.---A new trial will not be granted because of newly-discovered evidence where the only effect of such evidence would be to impeach a witness or contradict testimony of a witness at the former trial. p. 86.
15. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Lack of Diligence.---A motion for a new trial on the ground of newly-discovered evidence was properly overruled where affidavits in support of the motion did not show any diligence in discovering the evidence before the trial. p. 86.
16. CRIMINAL LAW---Instructions are to be considered as a whole. p. 86.
17. CRIMINAL LAW---Jurors' Individual Responsibility---Instruction Approved.---In a criminal prosecution, an instruction calling the attention of the members of the jury to their individual responsibility and personal independence in the discharge of their duties was approved. p. 86.
18. CRIMINAL LAW---Refusing Incorrect Instruction---Not Error.---There can be no error in refusing to give a requested instruction which does not correctly state the law. p. 87.
19. CRIMINAL LAW---Refusal of Instructions---When not Error.---There is no error in refusing to give tendered instructions when the subject-matter thereof has been covered by instructions given by the court on its own motion. p. 87.
From Huntington Circuit Court; Sumner Kenner, Judge.
Frank and Walter Foust were convicted of grand larceny, and they appeal.
Affirmed.
William A. Branyan, for appellants.
U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
On January 15, 1923, an affidavit was filed in the Huntington Circuit Court charging the appellants with grand larceny. The affidavit alleges that Frank Foust and Walter Foust, on September 23, 1922, at and in the said county of Huntington and State of Indiana, did then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of Eva Bradford: One 11 x 12-feet Axminster rug of the value of $ 35, one 9 x 12-feet Axminster rug of the value of $ 20, two 2 x 2 1/2-feet small floor rugs of the value of $ 2.50, two 2 x 4-feet rugs of the value of $ 4, and one guitar of the value of $ 6, in all the aggregate value of $ 67.50, then and there being, etc.
January 16, 1923, the defendants were arraigned in open court and bonds fixed at $ 500 and they were released on such bonds. January 22, 1923, the defendants filed a motion to quash the affidavit for the reasons: (1) The facts stated in the affidavit do not constitute a public offense; (2) the affidavit does not state the offense with sufficient certainty.
On January 26, 1923, the court overruled the motion to quash, to which ruling the defendants excepted. Each defendant then waived arraignment and pleaded not guilty. The cause was submitted to the court and jury for trial. The jury returned a verdict finding defendants guilty as charged in the affidavit as follows: "We, the jury find the defendants guilty as charged in the affidavit and find that their ages are as follows: Frank Foust, thirty-one years of age and Walter Foust thirty-eight years of age."
After a motion for a new trial had been overruled, judgment was rendered on the verdict, hence this appeal.
The rule requiring particularity in criminal pleading is to give identity and certainty to the transaction upon which the pleading is based, thereby enabling the accused to plead his conviction or acquittal in bar of another prosecution for the same offense. When this is done, the rule requiring particularity is satisfied. Williams v. State (1919), 188 Ind. 283, 123 N.E. 209.
In Shafer v. State (1881), 74 Ind. 90, it is held that an objection to an indictment that the property charged to have been stolen is inaccurately described is no cause for quashing the indictment, where the objection is not applicable to all the property named therein. The proper way to present such objection is to object to the admission of any evidence concerning the property improperly described.
In Wrenn v. State (1913), 12 Ga.App. 694, 78 S.E. 202, it is held that the description of the property alleged to have been stolen, given in the indictment, was sufficient for the purpose of identification and notice to the accused, although some of the contents of the description consisted of technical terms requiring explanation by expert evidence.
Section 2225 Burns 1926 provides that no indictment or affidavit shall be deemed invalid nor shall the same be set aside or quashed nor shall the trial judgment or other procedure be stayed, arrested or in any manner affected for any of the following defects, for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged or for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.
In Torphy v. State (1918), 187 Ind. 73, 118 N.E. 355, it is held that the mere presence of surplusage that does not affect the substantial rights of the defendant can do no harm in an indictment and is not subject to attack, but where the matter complained of tends to prejudice the accused without aid in the statement of the offense charged, and yet does not serve to render the indictment double, it may be stricken out on motion.
In Selby v. State (1904), 161 Ind. 667, 69 N.E. 463, it is held that neither an indictment nor...
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