Glaser v. State
| Decision Date | 01 November 1932 |
| Docket Number | 26,099 |
| Citation | 183 N.E. 33,204 Ind. 59 |
| Parties | Glaser v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND INFORMATION---Forgery---Sufficiency of Charge.---An affidavit charging that another and accused "did then and there unlawfully, feloniously, falsely and fraudulently make, forge, and counterfeit, and did then and there unlawfully, feloniously, falsely, and fraudulently cause to be falsely made, forged, and counterfeited a certain recognizance bond," which was described and a copy thereof incorporated in the affidavit, and that the State of Indiana was the party intended to be defrauded, was held to state a public offense with sufficient certainty. (2946 Burns 1926). p. 61.
2. FORGERY---Nature of Instrument.---An instrument, the nature of which, if genuine, would create an obligation, is sufficient to support a charge of forgery. p. 62.
3. FORGERY---Indictment or Affidavit---Description of Party Defrauded.---To constitute a good indictment or affidavit charging forgery, the party intended to be defrauded must be alleged. p. 62.
4. INDICTMENT AND INFORMATION---Joinder of Several Offenses---Duplicity.---Separate and distinct offenses created by separate and distinct sections of the statute and separate statutes, of offenses committed at different times cannot be joined in the same count of an indictment or affidavit. p. 62.
5. INDICTMENT AND INFORMATION---Charging Several Acts Conjunctively---When not Duplicitous.---Where the offense charged consists of one or more of the forbidden acts committed at the same time and included in a single section of the statute, and the punishment is the same for one or all of the offenses named, a single count charging more than one act conjunctively will not be bad for duplicity. p. 62.
6. FORGERY---Affidavit---Charging Two Offenses Conjunctively---Held not Duplicitous.---An affidavit charging accused forged, "and" unlawfully caused to be forged, a certain described recognizance bond, held not duplicitous since the offenses charged conjunctively constitute a single transaction for which but a single penalty can be exacted. p. 63.
7. CRIMINAL LAW---Lake Circuit Court---Jurisdiction in Criminal Actions.---The jurisdiction of the Lake Circuit Court in criminal actions is limited to such cases only as shall be venued to it by the Lake Criminal Court, and such change of venue is allowed only to relieve business congestion in the Lake Criminal Court. (Acts 1929, ch. 115, 1, 1686.1 Burns Supp. 1929.) p. 63.
8. CRIMINAL LAW---Lake Criminal Court---Transfer of Criminal Action to Circuit Court---Presumptions on Appeal.---Whether or not a congestion of the docket in the Lake Criminal Court exists to warrant the transfer of a cause to the Lake Circuit Court under section 1686.1 Burns Supp 1929, is a question to be determined solely by the judge of the criminal court, and, on appeal, his ruling in ordering such a transfer is supported by the presumption of correct action. p. 63.
9. CRIMINAL LAW---Lake Criminal Court---Transfer of Criminal Action to Circuit Court---Failure to Specifically Find "Business Congestion" as Cause Therefor.---Where the judge of the Lake Criminal Court transferred a criminal action to the Lake Circuit Court, without a specific finding that his docket was congested as a cause for such transfer nothing appearing to the contrary, it will be presumed on appeal that such action was in compliance with the statute. (1686.1 Burns Supp. 1929; McCarty v. State, 16 Ind. 310, and others, distinguished.) p. 63.
10. INDICTMENT AND INFORMATION---Motion to Quash---Presumptions.---When a criminal pleading is tested by a statutory motion to quash, it will not be aided by a presumption either as to jurisdiction of the court or of facts sufficient to state a public offense. p. 63.
11. COURTS---Regular, Adjourned and Special Terms---When Courts Take Judicial Notice.---The Supreme Court takes judicial notice of the regular terms of circuit courts of this state, but not so as to adjourned and special sessions which may be held only on compliance with the provisions of the statute authorizing the same. p. 66.
12. APPEALS---From Judgment Rendered at Adjourned Term or Special Session---Record.---If the judgment appealed from was rendered at an adjourned term or a special session of the trial court, the record on appeal should disclose the authority of such court to act. p. 66.
13. COURTS---Terms of Court---Fixed by Statute.---The regular terms of court are fixed by statute, and, without statutory authorization and compliance therewith, there can be no legal adjourned term or vacation session of a circuit court or any other court having statutory fixed terms. p. 66.
14. CRIMINAL LAW---Lake Circuit Court---Power to try Criminal Actions---In Vacation---Statute Construed.---The statute providing that criminal actions transferred from the Lake Criminal Court to the Circuit Court may be tried "at any time either during term-time or vacation" (2, ch. 115, Acts 1929, 1681.2 Burns Supp. 1929), held not to permit the judge of such circuit to act upon his own volition and to try the cases thus referred to the court without the formalities essential to a legally constituted court. p. 67.
15. COURTS---Special Session---Not Organized in Compliance with Statute---Proceedings Void.---Where appellant was tried in the Lake Circuit Court on a criminal charge at a time other than a regular term of that court, and no steps were taken to legally organize a vacation session thereof, such proceedings were void, and the court was without power to render a valid judgment. p. 68.
From Lake Circuit Court; Miles Norton, Judge.
Paul Glaser was convicted of forgery, and he appealed.
Reversed.
Harry Long, Robert H. Moore, Glenn Harris, Marguerite P. Glaser, Robert O. Graves, and Moore, Long, Chudom & Johnson, for appellant.
James M. Ogden, Attorney-General, and Merl M. Wall, Assistant Attorney-General, for the State.
In the Criminal Court of Lake County appellant and another were charged by affidavit in one count with violating § 2946 Burns 1926, and upon that court's own motion the venue of the cause was changed to the Lake Circuit Court, where, while it was in vacation, he was tried before a jury and convicted. On appeal to this court the questions relied upon for a reversal of the judgment below are covered by the assignment of errors challenging the action of the trial court in overruling his motion to quash and in overruling his motion for a new trial.
The affidavit alleges that another and appellant "did then and there unlawfully, feloniously, falsely and fraudulently make, forge and counterfeit, and did then and there unlawfully, feloniously, falsely and fraudulently cause to be falsely made, forged and counterfeited a certain recognizance bond purporting to have been made and executed by Sophia Vinovich and Nick Vinovich for the appearance of one Mary Cherry on the 28th day of May, 1930, in the Lake Criminal Court, to answer a charge of illegal voting." A copy of the bond alleged to have been forged and caused to be forged was incorporated in the affidavit.
The grounds relied on for quashing the affidavit are: Insufficient facts to constitute a public offense; failure to state the offense with sufficient certainty; and that more than one distinct offense is charged in a single count. The affidavit follows closely the language of the statute, and must be regarded as sufficient unless it must be said that it is bad for duplicity.
The statute, § 2946, supra, provides that "whoever falsely makes or assists in making . . ., forges, . . . or causes to be falsely made, . . . forged, . . . any record or authentic matter of a public nature . . . bond, covenant, writing obligatory, . . . or any other instrument in writing, with intent to defraud any person, body politic or corporate, or utters or publishes as true any such instrument or matter, knowing the same to be false, defaced, altered, forged, counterfeited, . . . with intent to defraud any person, body politic or corporate, shall, on conviction, be imprisoned, etc."
The instrument alleged to be forged, if genuine, would create an obligation, and therefore is sufficient upon which to base a charge of forgery. State v. Hazzard (1907), 168 Ind. 163, 80 N.E. 149. To constitute a good indictment or affidavit charging forgery, the party intended to be defrauded must be alleged, and in this case the affidavit names the State of Indiana as such party.
Counsel for appellant earnestly insist that the one-count affidavit at bar charged more than one offense, and for that reason it is duplicitous. The law applicable to criminal pleading in this jurisdiction forbids the joining "of separate and distinct offenses created by separate and distinct sections of the statute and separate statutes", or offenses committed at different times, in the same count. Davis v. State (1885), 100 Ind. 154, 159; Joslyn v. State (1891), 128 Ind. 160, 27 N.E. 492. For a well considered case involving this question, see Fletcher v. State (1874), 49 Ind. 124. But where, as here, the offense charged consists of one or more of the forbidden acts committed at the same time and included in a single section of the statute, and the punishment is the same for one or all of the offenses named, a single count charging more than one conjunctively will not be bad for duplicity. State v. Schipper (1923), 193 Ind. 595, 141 N.E. 330; Scheerer v. State (1925), 197 Ind. 155, 149 N.E. 892; Brogan v. State (1927), 199 Ind. 203, 156 N.E. 515; Bishop, New Criminal Proc., Vol. 1 (2d ed. by Underhill), § 436.
The precise question, in principle, now under consideration was before this court in Selby v. State (1904) 161 Ind. 667, 672, 69 N.E. 463, and Bruner...
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