Foust v. State, 24406.

• Decision Date: 18 May 1928
• Docket Number: No. 24406.,24406.
• Citation: 161 N.E. 371,200 Ind. 76
• Parties: FOUST et al. v. STATE.
• Court: Indiana Supreme Court

200 Ind. 76

161 N.E. 371

FOUST et al.

v.STATE.

No. 24406.

Supreme Court of Indiana.

May 18, 1928.

Appeal from Huntington Circuit Court; Sumner Kenner, Special Judge.

Frank Foust and another were convicted of grand larceny, and they appeal. Affirmed.Wm. A. Branyan, of Huntington, for appellants.

U. S. Lish, Atty. Gen., and Mrs. E. F. White, Deputy Atty. Gen., for the State.

WILLOUGHBY, C. J.

On the 15th day of January, 1923, an affidavit was filed in the Huntington circuit court charging the appellants with grand larceny. The affidavit alleges that Frank Foust and Waiter Foust on the 23d day of September, 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 11x12-foot Axminister rug of the value of $35, one 9x12-foot Axminister rug of the value of $20, two 2x2 1/2-foot small floor rugs of the value of $2.50, two 2x4-foot 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.

[1] 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, 188 Ind. 283, 123 N. E. 209.

In Shafer v. State, 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, 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, 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, 161 Ind. 667, 69 N. E. 463, it is held that neither an indictment nor information will be condemned for surplusage or informality when the language used charges a public offense with reasonable certainty.

[2] Under the Code of Criminal Procedure in this state no more certainty is required in criminal than civil proceedings. All that is required is that the allegation be certain to a common intent. Brunaugh v. State, 173 Ind. 483, 90 N. E. 1019;Lane v. State, 151 Ind. 511, 51 N. E. 1056; Gillett Criminal Law (2d Ed.) § 125.

In Gillett on Criminal Law, § 125, it is stated, that:

“Words used in an indictment are to be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning. No greater certainty is required in criminal pleadings than in civil pleadings; both must be certain to a common intent. Our own Supreme Court has indicated that a criminal charge should be prepared with that degree of certainty that the court and jury may know what they are to try, and acquit the defendant of or punish him for; that the defendant may know what he is to answer to; and that the record may show as far as may be for what he has once been put in jeopardy.”

[3] The true test of the sufficiency of an indictment is whether the material averments thereof are stated with sufficient certainty as to advise the defendant of the nature and character of the charges against him. Woodward v. State, 103 Ind. 127, 2 N. E. 321;Agar v. State, 176 Ind. 234, 94 N. E. 819.

In Bradley v. State, 165 Ind. 397, 75 N. E. 873, the subject of the larceny is described in the affidavit as one brown mare with white feet and face, and the evidence failed to show that she had either white face or white feet. It is claimed that, although the description is unnecessarily specific, under the authorities it must be proved as alleged. Morgan v. State, 61 Ind. 447. It is argued that there is no evidence to prove that the mare in question has a white face or that her feet were white. Conceding this insistence as true, the question of variance which appellant seeks to raise cannot properly be considered in this appeal, for, if appellant believed there was a variance between the averments and the proof in the case, he ought to have seasonably interposed his objections in this respect during the trial in the lower court, and in the event of an adverse ruling have assigned it as a reason for a new trial. Graves v. State, 121 Ind. 357, 23 N. E. 155;Taylor v. State, 130 Ind. 66, 29 N. E. 415;Kruger v. State, 135 Ind. 573, 35 N. E. 1019.

[4] In the description of the property alleged to have been stolen, in the affidavit in the instant case, certain rugs are described as 11x12-foot, 9x12-foot, 2x2 1/2-foot, and 2x4-foot rugs. This is the exact contention of appellant when he says the property alleged to have been stolen was not described with sufficient certainty. There is no merit in this contention. An indictment or information charging larceny should set forth the particular kind of property charged to have been stolen, but it is not necessary to so specify and decribe it as to identify it from other property of the same class. Where, however, a more particular description is given, it must be proved substantially as laid. Palmer v. State, 136 Ind. 393, 36 N. E. 130; Morgan v. State, supra.

[5] It was not necessary to name the size of the rugs and in considering the motion to quash these descriptions of size may be treated as surplusage. See Miller v. State, 165 Ind. 566, 76 N. E. 245; Palmer v. State, supra; Williams v. State, 25 Ind. 150;Harrington v. State, 76 Ind. 112;Turner v. State, 102 Ind. 425, 1 N. E. 869.

[6] These particular descriptions stating the size of the rugs alleged to have been stolen did not render the affidavit insufficient and the court did not err in overruling the motion to quash.

[7][8] During the trial of the case, Eva Bradford, alleged to be the owner of the property in controversy, after being asked whether a certain rug belonged to her on the 23d day of September, last, said that it did. The defendant objected to that question for the reason that the property is not sufficiently described in the charge that is lodged against these defendants. The objection was overruled and exceptions taken. The witness was then asked: “What was the size of this rug to which I point now?” The answer was: “This rug is 11x12.” The defendants object for the reason that there is no size given in the description in this charge. Said objection was overruled and defendants excepted. The witness was then asked to tell the jury what the value of the rugs was on the 23d day of September, 1922. To this defendants objected for the reason that the property was not properly and sufficiently described in the affidavit. The witness, after testifying that the rug was an Axminister and that it was 9x12, was asked: “When you say 9x12, tell the court and jury what you mean by that.” Defendants objected for the reason that it was not described in the charge. Objection overruled and witness answered; “9x12 feet.” Witness was then asked: “When you say 9x12 feet, what do you mean by that?” Answer: “It was a 9x12-foot Axminister rug.” To the answer of this question defendants object and except. Exceptions overruled. Answer: “It was 9 feet one way and 12 the other way.” The question was then asked as follows: “Calling your attention to the large rug, I understood you to say that it was 11x12; tell the jury what you mean by that.” Answer: “11 feet one way and 12 feet the other.” Defendants object because they say the witness cannot enlarge upon the description put in the affidavit. Objection overruled and exceptions taken. The witness was then asked if she recognized the...