Genett v. State
| Decision Date | 16 December 1925 |
| Docket Number | 24,847 |
| Citation | 149 N.E. 894,197 Ind. 105 |
| Parties | Genett v. State of Indiana |
| Court | Indiana Supreme Court |
1 CONSPIRACY.---Affidavit charging conspiracy to commit a felony must specify the purposed felony and it must be charged with the same particularity as in an affidavit charging commission of such felony.---An affidavit charging conspiracy to commit a felony must specify the felony which was purposed, and such felony must be charged with the same fullness and particularity as in an affidavit charging the commission of such felony itself. p. 107.
2 CONSPIRACY.---Affidavit charging conspiracy to commit perjury must allege the elements of perjury as completely as if the affidavit was charging the crime of perjury.---An affidavit charging a conspiracy to commit the crime of perjury, to be sufficient, must allege the elements of perjury as completely as if the defendant were being charged with the crime of perjury, and the negation of the facts on which the perjury is predicated must be as broad as the facts alleged on which the charge of perjury itself is based. p 107.
3 CONSPIRACY.---Affidavit charging conspiracy to commit perjury held sufficient.---An affidavit charging conspiracy to commit the crime of perjury containing allegations showing the conspiracy and describing the purposed perjury as defined in 2576 Burns 1926, 2375 Burns 1914, held sufficient on motion to quash. p. 110.
4. CRIMINAL LAW.---Motion in arrest of judgment precluded subsequent motion for new trial prior to 1925.---Prior to the amendment of 2159 Burns 1914 in 1925 (Acts 1925 p. 490, 2326 Burns 1926), a motion in arrest of judgment precluded a subsequent motion for a new trial unless the reasons for a new trial were not known at the time of filing the motion in arrest of judgment. p. 111.
5. CRIMINAL LAW.---Appellant must present record showing affirmatively that trial court committed prejudicial error.---An appellant must present a record which affirmatively shows that the trial court committed prejudicial error in order to obtain a reversal. p. 111.
From Perry Circuit Court; Elbert M. Swan, Special Judge.
John Genett was convicted of conspiracy to commit perjury, and he appeals.
Affirmed.
Oscar Minor, Ed Lincoln and W. E. Cox, for appellant.
Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.
The appellant was found guilty of criminal conspiracy to commit a felony. The charge was made pursuant to § 2882 Burns 1926, § 2647 Burns 1914, which provides as follows: "Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association, or combination of persons, whose object is the commission of a felony or felonies, within or without this state shall on conviction be fined not less than twenty-five dollars nor more than five thousand dollars, and be imprisoned in the State Prison not less than two years nor more than fourteen years." The purposed felony was perjury as defined by § 2576 Burns 1926, § 2375 Burns 1914.
A motion was made to quash the affidavit for the reason that the facts stated therein do not constitute a public offense and for the further reason that the affidavit does not state the offense with sufficient certainty.
It is necessary in an affidavit under this section to specify the felony which was purposed and the affidavit under such section to be sufficient must be as specific and full as an affidavit charging the commission of such felony itself. Landringham v. State (1874), 49 Ind. 186.
The charge against the defendant in this case is conspiracy to commit the crime of perjury, and, to make the affidavit sufficient, the charge of perjury must be as complete as though the defendant himself was charged with the crime of perjury, and the negation of facts on which the perjury is predicated must be as broad as the facts alleged on which the charge of perjury itself is based. Stefani v. State (1890), 124 Ind. 3, 24 N.E. 254.
The appellant claims there is no allegation in the affidavit that the appellant and John Hanaway knew at the time of the formation of the conspiracy as alleged in the affidavit that the testimony of Hanaway was to be false. Nor does the affidavit allege that Hanaway knew at the time he testified that what he was testifying to was false. The appellant's contentions are not sustained by the record.
The affidavit alleges that John Genett and John Hanaway, at said county and state, on or about January 7 1923, did then and there, as this affiant is informed and verily believes, unlawfully, knowingly, and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose and with the unlawful and felonious intent to have and procure the said John Hanaway to testify falsely before the circuit court of the county of Dubois in the State of Indiana, and before a jury duly and legally empaneled in and by said court, in a matter material to a certain issue which was then and there joined in said court between the State of Indiana as plaintiff and one Frank Genett as defendant, in a certain action wherein the said Frank Genett as such defendant was charged with the crime of murder in the first degree, which said action had before that time been commenced and was then pending in and before the said circuit court of the said county of Dubois in said State of Indiana, and which said issue in said cause was, on January 22, 1923, legally and in due form of law tried in said circuit court of the said county of Dubois; that for the purpose of carrying out the said unlawful and felonious agreement so made by and between the said John Genett and John Hanaway and...
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