Gardner v. State, 28699

• Decision Date: 13 April 1951
• Docket Number: No. 28699,28699
• Parties: GARDNER v. STATE.
• Court: Indiana Supreme Court

Page 921

97 N.E.2d 921

229 Ind. 368

GARDNER v. STATE.

No. 28699.

Supreme Court of Indiana.

April 13, 1951.

Galvin, Galvin & Leeney, Floyd R. Murray, all of Hammond, for appellant.

J. Emmett McManamon, Atty. Gen., Norman J. Beatty and Frank E. Coughlin, Deputy Attys. Gen., for appellee.

David P. Stanton, Pros. Atty., Gilbert Gruenberg, Sp. Deputy Prosecutor, Gary, amicus curiae.

GILKISON, Judge.

On September 30, 1948, an indictment was filed against appellant in the Criminal Court of Lake County charging him with the crime of perjury in a voluntary affidavit, which, it is alleged, was sworn to before Walter Mybeck, Clerk of Lake Superior Court. The charge is brought under § 10-3802, Burns' 1942 Replacement. On June 2, 1949 appellant waived arragnment and entered a plea of not guilty.

On November 8, 1949 the state filed its motion to amend the indictment to make it state that the voluntary affidavit of appellant upon which the charge is based was sworn to before 'Walter W. Krause who was then and there the duly appointed, authorized and acting deputy clerk of Walter Mybeck who was then and there Clerk of the Lake Superior Court of Indiana.' Over appellant's objection, the court allowed this amendment to the indictment. Appellant's motion to strike out the amendment was overruled. These rulings are assigned as errors by appellant.

A motion to quash the amended indictment was overruled. This ruling is also assigned as error.

Trial by jury resulted in a finding of guilty and fixing appellant's age at thirty-five years. Appellant's motion for new trial containing 44 reasons was overruled and judgment was rendered on the verdict on April 21, 1950. From this judgment the appeal is taken.

A serious question is presented with respect to the order allowing the amendment of the indictment. A statute enacted in 1935 permits the amendment of indictments as follows: 'The court may at any time before, during or after the trial amend the indictment or affidavit in respect to any defect, imperfection or omission in form, provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.' Sec. 9-1133, Burns' 1942 Replacement.

We are at once confronted with the question: Was the amendment, an amendment as to the form of the indictment only, or was it as to its substance? If it was as to form only, the ruling of the trial court allowing it was correct. But if the amendment was as to substance the ruling was error. There are certain essential averments fixed by statute that must be contained in any indictment or affidavit seeking to charge perjury in swearing to a written instrument. Among others, we call attention to the last sentence in Acts 1905, Ch. 169, p. 584, § 184, p. 623 as follows: 'And in an indictment or offidavit for perjury in swearing to any written instrument, it shall only be necessary to set forth that part of the instrument alleged to have been falsely sworn to, and to negative the same, with the name of the officer or court before whom the instrument was sworn to.' (Our italics.) Sec. 9-1116, Burns' 1942 Replacement.

This court has frequently held that the name of the person or court administering the oath is a matter of substance and must be averred in the indictment or affidavit and proved as averred; a variance in this respect is fatal. Davis v. State, 1923, 193 Ind. 650, 655, 141 N.E. 458. State v. Gross, 1911, 175 Ind. 597, 600, 95 N.E. 117. Hitesman v. State, 1874, 48 Ind. 473, 475. Ewbank's Indiana Criminal Law (2 Ed.) Sec. 331 pp. 204, 205; Sec. 1171 pp. 890, 891. 41 Am.Jur. Perjury Sec. 33 p. 20. 2 Wharton Criminal Procedure (10 Ed. Kerr) Sec. 1086 pp. 1536, 1538. Kerr v. People, 1866, 42 Ill. 307. See also Rhoades v. State, 1946, 224 Ind. 569, 572, 70 N.E.2d 27. Pagotis v. State, 1938, 214 Ind. 697, 699, 17 N.E.2d 830. Way v. State, 1946, 224 Ind. 280, 286, 66 N.E.2d 608. Drury v. State, 1945, 223 Ind. 140, 141, 59 N.E.2d 116. Edwards v. State, 1942, 220 Ind. 490, 44 N.E.2d 304. 42 C.J.S., Indictments and Informations, § 240 p. 1249. 27 Am.Jur. Indictments and Informations Sec. 117, 118, p. 677, 678.

The amicus curiae recognizes this to be the established law in this state, but takes the position that the amendment statute, § 9-1133, Burns' 1942 Repl. authorizes amendments greater than for a mere 'defect, imperfection or omission in form'. In this connection the amicus curiae cites Peats v. State, 1938, 213 Ind. 560, 567, 12 N.E.2d 270, 274. In that case the indictment as returned averred that the murdered man died on the 9th day of March. During the trial of the case the trial court allowed the indictment to be amended by changing the figure 9th to 10th. In considering the alleged error on appeal this court said: 'Time is not of the essence of the offense, and the amendment did not alter the indictment in any material respect.' It is contended that thereby this court enlarged upon the statute permitting amendments, § 9-1133, supra, announced a doctrine permitting amendments so long as they are not of the 'essence of the offense'. They also cite Krauss v. State, 1947, 225 Ind. 195, 197, 73 N.E.2d 676. Marshall v. State, 1949, 227 Ind. 1, 9, 83 N.E.2d 763 each of which use the same expression 'essence of the offense'. We do not think that in these cases or any others this court intended to enlarge or otherwise change the statute permitting amendments. Of course, this court cannot legislate nor can it extend its power by implication or intendment beyond the powers granted by the statute where the power exercised is statutory. 21 C.J.S., Courts, § 29 p. 40. True it has used fifferent words, but the intention was to permit amendments to indictments only 'in respect to any defect, imperfection or omission in form'. The proviso in the statute strongly supports this position for it says 'provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.' (Our italics.)

The original indictment as returned by the grand jury charged that the voluntary affidavit upon which the perjury charge is based was sworn to by appellant before 'Walter R. Mybeck who was then and there clerk of the Lake Superior Court of Indiana * * *.' As before stated the amendment allowed charged that the affidavit was sworn to by appellant before 'Walter W. Krause, * * * who was an acting deputy clerk * * *.' Under all the authorities in this state the amendment was one of substance and not of form. It was error to allow it.

The statute under which the indictment is returned, definding the offense and providing the penalty for 'Perjury in voluntary affidavit' is as follows: 'Whoever wilfully, corruptly and falsely, before any officer authorized to administer oaths, under oath or affirmation, voluntarily makes any false certificate, affidavit or statement of any nature, for any purpose, shall be deemed guilty of perjury, and, on conviction, shall be imprisoned in the state prison for not less than one nor more than ten years.' Sec. 10-3802, Burns' 1942 Replacement.

It will be noted that an essential part of the crime charged is that the voluntary affidavit was 'wilfully, corruptly and falsely' made. This means that there must be proof that at the time he made it, affiant knew the affidavit was false. By proper assignments in his motion for new trial appellant questions the sufficiency of the evidence to sustain the verdict; and avers that the verdict is contrary to law. By these specifications are sufficiency of the evidence is challenged in the trial court and in this court. Luttrell v. State, 1932, 204 Ind. 116, 118, 183 N.E. 318. Trainer v. State, 1926, 198 Ind. 502, 510, 154 N.E. 273. Luther v. State, 1912, 177 Ind. 619, 622, 98 N.E. 640. By his reasons for new trial numbered from 18 to 44 inclusive appellant questions the rulings admitting in evidence documents executed by appellant eight months or more after the date of the commission of the alleged perjury, which documents indicate that at the time they were each executed appellant knew there was no such person in existence as John A. W. Hansingford, and to the admittance of each of which appellant at the trial made proper and timely objections.

Appellant insists that there is no evidence in the record, and no proper inference that may be drawn from the lawful evidence indicating that he had any knowledge of the falsity of the affidavit when he made it.

The evidence shows that appellant was a practicing attorney at law. As such he had represented plaintiffs who had sewage assessment liens on fifty-nine pieces of property in the Tapper Avenue Sewer Assessment District of Hammond. Such action had been taken that a judgment of foreclosure on the liens had been rendered on October 28, 1942. At a sale of the property thereon by the sheriff it was bid in by appellant for the judgment plaintiffs for the amount of the liens and a sheriff's certificate of sale was issued to the purchasers and delivered to appellant as their attorney on January 11, 1943. Appellant had the property described in the certificate of purchase appraised by William Duncan and Warren Reeder who appraised the same at $790,00 in January, 1944. Later Reeder informed appellant that he had a prospective purchaser for the sheriff's certificate--named John A. W....