Gennaitte v. State, 30246
| Citation | 243 Ind. 532,188 N.E.2d 412 |
| Decision Date | 06 March 1963 |
| Docket Number | No. 30246,30246 |
| Parties | Angelo M. GENNAITTE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Widaman, Bowser & Widaman, by John D. Widaman, Warsaw, Max E. Reed, Warsaw, of counsel, for appellant.
Edwin K. Steers, Atty. Gen. of Indiana, William D. Ruckelshaus, Asst. Atty. Gen., Indianapolis, for appellee.
Appellant was charged by affidavit in two counts and convicted thereunder of (1) forgery of a check and (2) uttering a forged check.
Appellant asserts as error that, (a) neither Count I nor Count II of the affidavit constituted a crimainal offense; nor did either charge such offenses with sufficient certainty, and (b) the court committed reversible error, with respect to the admission and exclusion of certain evidence.
The issue as to the sufficiency of the affidavit was raised first by a motion to quash and, later, by a motion in arrest of judgment.
Since the same alleged defects are relied on in support of each of the above pleadings, and since defects in an affidavit or indictment are more liberally construed in favor of the state, when attacked by motion in arrest of judgment than when raised prior to trial on motion to quash it is sufficient to the purpose of this opinion that we consider said defects only as challenged by appellant's motion to quash, where they are considered most liberally in favor of the appellant. Britt v. State (1962), Ind., 180 N.E.2d 235.
The affidavit, omitting formal parts, reads as follows:
'COUNT I: Earl L. Teghtmeyer, being duly sworn upon oath says that on or about the 10th day of May, 1961, at and within the County of Kosciusko and State of Indiana, one Angelo M. Gennaitte, then and there being, did then and there unlawfully, feloniously, falsely and fraudulently make, forge and counterfeit a certain check purported to have been made and executed by one Richard Nice for the payment of a sum of money, to-wit: Six thousand dollars ($6,000.00), payable to the order of E. L. Teghtmeyer, which said false, forged and counterfeit check is in the following tenor, viz:
71-27 712
LINCOLN NATIONAL BANK AND TRUST CO.
Pay to the
Order of E. L. Teghtmeyer $6,000
Six Thousand 00/100 Dollars
s/ Richard Nice'
with intent then and thereby feloniously, falsely and fraudulently to defraud Earl L. Teghtmeyer, . . . the same being contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.
COUNT II. Earl L. Teghtmeyer, being duly sworn upon oath says that on or about the 10th day of May, 1961, at and within the County of Kosciusko and State of Indiana, one Angelo M. Gennaitte, then and there being, did then and there unlawfully, feloniously, fraudulently and knowingly utter, publish and deliver to Earl L. Teghtmeyer as true a certain false, forged and counterfeit check purported to have been made and executed by one Richard Nice for the payment of a sum of money, to-wit: Six thousand dollars ($6,000) payable to the order of one E. L. Teghtmeyer, which said false, forged and counterfeit check is of the following tenor, viz:
71-27 712
LINCOLN NATIONAL BANK AND TRUST CO.
Pay to the
Order of E. L. Teghtmeyer
Six Thousand 00/100 Dollars
s/ Richard Nice'
with intent then and there and thereby feloniously, falsely and fraudulently to defraud the said Earl L. Teghtmeyer as aforesaid, * * * he, the said Angelo M. Gennaitte, then and there well knowing the said check to be false, forged and counterfeit; the same being contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'
Appellant concedes that the allegations of the affidavit conform to the language of Acts 1905, ch. 169, § 676, p. 584, being § 10-2102, Burns' 1956 Repl. However, appellant asserts that Count I, which alleges that the defendant did 'make, forge and counterfeit a certain check [describing it],' does not charge a criminal offense and does not charge an offense with sufficient certainty, because it does not state specifically the act or acts committed by the appellant which constituted the forgery of the instrument described. Appellant asserts that the words used to describe the offense are generic terms which, although in the language of the statute, are not sufficient to meet the required test of certainty or particularity because they do not enable the court and jury to understand distinctly what is to be tried and determined, nor do they fully inform the defendant of the particular charge he is to meet.
In support of the above contention, appellant cites the case of Large v. State (1928), 200 Ind. 430, 434-435, 164 N.E. 263, 264-265. However, the insufficiency of the allegation in that case, as compared with the allegation with which we are presently concerned, is so apparent that little discussion is warranted. As stated in the Large case, supra:
'In the affidavit in the instant case, it is alleged that the appellant, 'on or about the 5th day of March, 1924, * * * did then and there unlawfully keep, maintain, and assist in keeping and maintaining a common nuisance, to wit: a room, house, building, structure, and place where intoxicating liquors where then and there kept for sale, barter, delivery and given away in violation of the laws of the State of Indiana.' The affidavit further alleges, 'And where persons were then and there permitted to resort for the purpose of drinking intoxicating liquor as a beverage in violation of the laws of the State of Indiana.'
'It is further alleged in said affidavit that such nuisance was kept and maintained by keeping a place where persons were then and there permitted to resort for the purpose of drinking intoxicating liquor as a beverage in violation of the laws of the state of Indiana, but the affidavit furnishes no information as to why this was a violation of the laws of the state of Indiana. * * *'
Notwithstanding the allegations contained in the affidavit, since the drinking of intoxicating liquor in a public place was not in itself an unlawful act, the unanswered question remains: By reason of what unlawful act or acts did the facts alleged constitute a criminal offense?
In contrast with the circumstances in the Large case, supra, it cannot be said in the case at bar that the appellant was not fully informed of the particular unlawful acts with which he was charged and what evidence would be admissible, both in support of and in defense of such charge. Likewise, the cases of Mayhew v. State (1920), 189 Ind. 545, 128 N.E. 599, and Hunt v. State (1927), 199 Ind. 550, 159 N.E. 149, cited and relied upon by the appellant, are distinguishable in the facts presented. Contrary to the contentions made by the appellant, an affidavit charging that appellant did feloniously 'make, forge and counterfeit' a check, setting out the terms thereof, with intent to defraud the purported maker of such check, states a criminal offense and states it with sufficient certainty. Bottorff v. State (1927), 199 Ind. [243 Ind. 539] 540, 156 N.E. 555. Therefore, the motion to quash was properly overruled as to Count I of the affidavit.
With respect to Count II, appellant asserts that it was fatally insufficient in that, (1) 'It leaves to the speculation of the defendant the question of whether Richard Nice executed the check or not.' And...
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Buckley v. State, 2--1173A245
...need be proved under this statute is that the instrument was uttered with intent to defraud knowing it to be false. Gennaitte v. State (1963), 243 Ind. 532, 188 N.E.2d 412. "Uttering is the offering of a forged instrument, knowing it to be such, with a representation that it is genuine, and......
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Gresham v. State, 1-780A194
...480; McHaney v. State (1972) 153 Ind.App. 590, 288 N.E.2d 284; Jackson v. State (1967) 248 Ind. 579, 228 N.E.2d 3; Gennaitte v. State (1963) 243 Ind. 532, 188 N.E.2d 412. These cases clearly establish knowledge that the instrument is forged as an essential element of the offense of uttering......
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Lindsey v. State
...freely and voluntarily after objection was made by a defendant. Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Gennaitte v. State (1963), 243 Ind. 532, 188 N.E.2d 412. It is clear that by the law that prevailed at the time of the Appellant's trial an objection was required if voluntar......
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Hopper v. State
...forged instrument, knowing it to be such, with a representation that it is genuine, and with an intent to defraud.' Gennaitte v. State (1962), 243 Ind. 532, 188 N.E.2d 412. In his brief, appellant concedes that the check which he presented to the bartender was forged. He asserts, however, t......