Funk v. The State
| Decision Date | 28 January 1898 |
| Docket Number | 18,375 |
| Citation | 49 N.E. 266,149 Ind. 338 |
| Parties | Funk v. The State |
| Court | Indiana Supreme Court |
From the Allen Circuit Court.
Reversed.
S. M Hench and E. V. Harris, for appellant.
Newton D. Doughman, for State.
Appellant was prosecuted on affidavit and information for the crime of having obtained a certain sum of money by means of false representations in violation of the provisions of the statute. Section 2352, Burns' R. S. 1894 (2204 Horner's R. S. 1897). Upon a trial he was convicted, and sentenced to be imprisoned in the state prison, and to pay a fine of twenty-five dollars. Motions to quash both the affidavit and information were made and overruled, and proper exceptions reserved. These rulings of the court, and the overruling of a motion for a new trial, are assigned as errors.
The sufficiency of the affidavit and information are each assailed by counsel for appellant for several specified reasons, all of which we need not set out in detail. The information and the affidavit upon which it is founded are substantially alike, the latter being in words as follows (Caption omitted): "William D. Baker, being duly sworn, upon his oath says, that on the 2nd day of December, A. D. 1896, at the county of Allen, and State of Indiana, one Mathias Funk did then are there unlawfully, feloniously and designedly, with intent to cheat and defraud one William D. Baker, falsely pretend to the said William D. Baker that he, the said Mathias Funk, was then and there the owner of two iron gray mares then in said county, of the value of two hundred dollars ($ 200.00), in his own name and right, and free from any incumbrance, claim, and lien; that by means of said false pretenses, the said William D. Baker then and there relying upon and believing the same to be true, said Mathias Funk did then and there unlawfully, feloniously, and designedly obtain from said William D. Baker sixty dollars ($ 60.00) money of the United States, current therein, of the value of sixty dollars ($ 60.00), the property of the said William D. Baker, in exchange for two promissory notes of said Mathias Funk, one for thirty dollars ($ 30.00) and the other for thirty dollars and eighty-one cents ($ 30.81); said notes being dated on the 2nd day of December, 1896, and payable in sixty and ninety days, respectively, and, as security for said notes, a mortgage was executed by said Mathias Funk upon the said horses hereinbefore described; that the said notes and mortgage were then and there delivered to said William D. Baker by said Mathias Funk in exchange for the said sixty dollars ($ 60.00), which was then and there delivered by the said William D. Baker to said Mathias Funk, and the said William D. Baker then and there relied upon said false representations and pretenses of said Mathias Funk, that he was then and there the owner in his own right of the said horses described in the said mortgage, as security for said notes, whereas in truth and in fact the said Mathias Funk was not then and there the owner of said horses, and had no right, title, or interest in them whatever, but did then and there falsely pretend that he was the owner of the same, as aforesaid, with the felonious intent then and there to cheat and defraud the said William D. Baker out of the said sum of sixty dollars ($ 60.00), as aforesaid; contrary to the form of the statutes of the State of Indiana." Signed and sworn to by William D. Baker.
An inspection of this pleading fully discloses that it is not framed with the strictness that is generally required in a criminal charge, and that the accusation against the defendant is not preferred in all of the essential averments with the reasonable certainty which the law exacts from the State in a criminal prosecution. The doctrine so frequently asserted and adhered to by this court is that the particular crime with which the accused is charged must be preferred with such reasonable certainty by the essential averments in the pleading as will enable the court and jury to distinctly understand what is to be tried and determined, and fully inform the defendant of the particular charge which he is required to meet. The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder. Keller v. State, 51 Ind. 111; Strader v. State, 92 Ind. 376; State v. Cleveland, etc., R. W. Co., 137 Ind. 75, 36 N.E. 713; Littell v. State, 133 Ind. 577, 33 N.E. 417.
It was asserted in the case last cited that, where an indictment is so uncertain or doubtful as to be susceptible of more than one construction, in that event it must be construed most strongly against the State, and all reasonable doubts arising upon the averments thereof should be solved in favor of the person accused. Tested by these principles, it is apparent that the pleading in controversy is insufficient.
In the beginning it is charged that the accused falsely pretended that he was the owner of "two iron gray mares, then in said county, of the value of two hundred dollars, in his own name and right, and free from any incumbrance, claim, and lien; that by means of said false pretense the said William D. Baker then and there relying upon and believing the same to be true, said Mathias Funk did then and there unlawfully, etc., obtain from said Baker sixty dollars, etc., * * * in exchange for two promissory notes of said Mathias Funk, one for $ 30.00 and the other for $ 30.81; said notes being dated on the 2d day of ...
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