Glaser v. State, No. 26099.

• Docket Nº: No. 26099.
• Citation: 204 Ind. 59, 183 N.E. 33
• Case Date: November 01, 1932
• Court: Supreme Court of Indiana

204 Ind. 59
183 N.E. 33

GLASER
v.
STATE.

No. 26099.

Supreme Court of Indiana.

Nov. 1, 1932.

Appeal from Lake Circuit Court; Miles Norton, Judge.

Paul P. Glaser was convicted of violating Burns' Ann. St. 1926, § 2946, and he appeals.

Reversed, with directions.

[183 N.E. 34]

Harry Long, Robt. H. Moore, Glenn Harris, Marguerite Glaser, Moore, Long, Chudom & Johnson, and Robert O. Graves, all of Gary, for appellant.

Jas. M. Ogden, Atty. Gen., and Merl M. Wall, Asst. Atty. Gen., for the State.

MYERS, J.

In the criminal court of Lake county appellant and another were charged by affidavit in one count with violating section 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 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 into 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, section 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 sufficient upon which to base a charge of forgery. State v. Hazzard, 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 offences, 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, 100 Ind. 154, 159;Joslyn v. State, 128 Ind. 160, 27 N. E. 492, 25 Am. St. Rep. 425. For a well considered case involving this question, see Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673. 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, 193 Ind. 595, 141 N. E. 330;Scheerer v. State, 197 Ind. 155, 149 N. E. 892;Brogan v. State, 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, 161 Ind. 667, 672, 69 N. E. 463, 465, and Bruner v. State, 201 Ind. 33, 164 N. E. 272, and in both cases it was held that a charge of forgery and knowingly uttering a forged instrument may be pleaded in a single count when tied together conjunctively, when both offenses are charged “as constituting a single transaction, and for which but a single penalty can be exacted.” The pleading at bar is sufficient to withstand a motion to quash.

In support of his motion for a new trial, counsel for appellant first insists that the Lake circuit court was without jurisdiction to try this cause,...